CIHM 

Microfiche 
Series 

(Monographs) 


iCMH 

Collection  de 

microfiches 

(monographies) 


m 


CaiMdiMi  Ifwtitut*  for  Historical  IMicroroproductioM  / 


Institut  Canadian  da  microraproductiona  hiatoriquas 


Technical  and  Bibliographic  Notes  /  Notes  techniques  et  bibliographiques 


The  Institute  has  attempted  *o  obtain  the  best  original 
copy  available  for  filming.  Features  of  this  copy  which 
may  be  bibliographically  unique,  which  may  alter  any  of 
the  Images  in  the  reproduction,  or  which  may 
significantly  change  the  usual  method  of  filming  are 
checked  beSow. 

□ Coloured  covers  / 
Couverture  de  couleur 

□ Covers  damaged  / 
Couverture  »n6ommg6e 

□ Covers  restored  and/or  laminated  / 
Couverture  restaur^  et/ou  peHicu!4e 

I    I  Cover  title  missing  /  Le  titre  de  couverture  manque 

I    I  Coloured  maps/ Cartes  g^raphiques  en  couleur 

□ Coloured  ink  (i.e.  other  than  blue  or  black)  / 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  ndre) 

□ Cotoured  plates  and/or  illustrattons  / 
Plandws  et/bu  iNustrattons  en  couleur 

□ Bound  with  other  material  / 
Reli4  avec  d'autres  documents 

□ Only  editton  available  / 
Seule  Mlkm  disponible 

□ Tight  binding  may  cause  shadows  or  distortion  along 
interior  margin  /  La  ^eliure  serr6e  peut  causer  de 
I'ombre  ou  de  la  distorsion  te  long  de  la  marge 
int^rieure. 

I  I  Blank  leaves  added  during  restorations  may  appear 
' — '  within  the  text.  Whenever  possible,  these  have  been 
omitted  from  filming  /  II  se  peut  que  cerlaines  pages 
blanches  ajoutdes  lors  d'une  restauration 
apparaissent  dans  le  texte.  mais,  lorsque  cela  6\at\ 
possibte,  ces  pages  n'ont  pas  M  filmtes. 

□ A(Mitk>nal  comments  / 
Commentaires  suppMmentaires: 


L'tnstitut  a  microfilm^  le  meilleur  exemplaire  qu'il  lui  a 
et^  possible  de  se  procurer.  Les  details  de  cet  exem* 
plaire  qui  son!  peut-Atre  unkjues  du  point  de  vue  bibii* 
ographique,  qui  peuvent  modifier  une  image  reproduite, 
ou  qui  peuvent  exiger  une  nruxiification  dans  la  m^tho- 
de  norrnale  de  fibnage  son!  indk^ute  d-dessous. 

I    I  Coloured  pages  /  Pages  de  couleur 

I    I  Pages  damaged/ Pages  endommagtes 


Pages  restored  and/or  laminated  / 
Pages  restaurtes  et/ou  peilicul^es 


Pages  discotoured,  stained  or  foxed  / 
Pages  dteolortes.  tachet^  ou  pk^u^es 


I    I  Pages  detached/ Pages  d^tach^ 
Showthrough /Transparence 


Quality  of  print  varies  / 
Oualit^  in^gale  de  I'impression 


Includes  supplementary  material  / 
Comprend  du  materiel  suppl^mentaire 


I  I  Pages  wholly  or  partially  obscured  by  errata  slips, 
' — '  tissues,  etc.,  have  been  refilmed  to  ensure  the  best 
possible  image  /  Les  pages  totalement  ou 
partieiiement  obscurcies  par  un  feuillet  d'errata,  une 
pelure,  etc.,  ont  6\6  film^es  k  nouveau  de  fa(on  h 
obtenir  la  meilleure  image  possible. 

□ Opposing  pages  with  varying  colouration  or 
discotourations  are  filmed  twice  to  ensure  the  best 
possible  image  /  Les  pages  s'opposant  ayant  des 
colorations  variables  ou  des  decolorations  sont 
filmtes  deux  fois  afin  d'obtenir  la  meilleure  image 
possible. 


This  item  is  filmed  at  the  reduction  ratio  checked  below  / 

C*  document  est  f ilmi  au  taux  d*  rMuction  Indiqu4  ci-dcisout. 


10x 


14x 


18x 


22x 


26x 


30x 


12x 


16x 


20x 


24x 


28x 


32x 


Ths  copy  filmed  h«r«  has  bMn  rapredue«d  thanks 
to  th«  gcfwrosity  of: 


L'oxomplairo  film*  fut  roproduit  gric*  k  la 
84nAroalt«  da: 


NitfoMl  Library  of  CmmJi 


tfblfothiqiM  MtlOMi*  du  CMMd* 


Tha  Imagas  appearing  ha<s  ara  tha  bast  quality 
possibla  considaring  tha  condition  and  lagibility 
of  tho  original  copy  and  in  kaoping  with  tha 
filming  eontract  spocif  ieationa. 


Original  copias  in  printad  papar  eovars  ara  fllmad 
beginning  with  tha  front  covar  and  anding  on 
tha  last  paga  with  a  printad  or  illustratad  impras- 
sion,  or  tha  back  covar  wnan  appropriate.  All 
other  original  copiee  ere  filmed  beginning  on  the 
first  paga  with  a  printad  or  illuatratad  imprea- 
aion,  and  anding  on  tha  laat  page  with  a  printad 
or  UliMtreted  impreeaion. 


The  leat  recorded  freme  on  eeeh  microfiche 
shall  contain  tha  symbol  — ^  (meaning  "CON- 
TINUED").  or  tha  symbol  V  (meaning  "END"), 
whichever  eppliea. 

Maps,  plates,  charts,  etc..  may  be  filmed  at 
different  reduction  ratioa.  Thoae  too  large  to  be 
entirely  included  in  one  exposure  ara  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bonom.  as  many  frames  as 
required.  The  following  diagrama  illustrate  the 
method: 


Las  images  suivantea  ont  M  raproduites  avec  le 
plua  grand  soin.  compta  tenu  de  la  condition  at 
do  le  nettet«  de  I'exempleire  film*,  et  en 
conformity  avec  lee  eonditlona  du  contrat  de 
filmege. 

Lea  axemplalraa  originaux  dont  la  couverture  en 
papier  est  ImprimAe  sent  filmis  on  commandant 
par  le  premier  plot  et  en  terminant  soit  par  le 
derniire  page  qui  eomporte  une  empreinte 
dimpreasion  ou  d'lllustration,  soit  par  la  second 
plat,  salon  le  cas.  Tous  las  autres  exemplaires 
originaux  sent  filmAs  an  commandant  par  la 
premlAre  page  qui  eomporte  une  empreinte 
dlmpreaaion  ou  d'illustration  at  en  terminan<  par 
ia  demiire  pege  qui  eomporte  une  telle 
empreinte. 

Un  dee  symbolee  solvents  spparsitra  sur  la 
darniire  image  de  cheque  microfiche,  selon  le 
cas:  la  symbols  — signifie  "A  SUIVRE  '.  le 
symbole  ▼  signifie  "FIN". 

Les  csrtes.  planches,  tableaux,  etc..  pauvent  itre 
filmte  A  dee  taux  de  riduetion  diff Arents. 
Lorsque  le  document  est  trop  grand  pour  itre 
reproduit  en  un  soul  clicha.  il  est  film*  a  partir 
da  {'angle  supArleur  gauche,  de  gauche  *  droite. 
et  de  haut  en  baa.  an  prenent  le  nombre 
d'imeges  niceaaaira.  Lea  diagrammas  suivants 
iUuatrent  la  mtthode. 


1 

2 

3 

4 

5 

6 

MKROCOTY  RESOIUTION  TEST  CHART 

(ANSI  ond  ISO  TEST  CHART  No.  2) 


^   /APPLIED  IM/IGE  Inc 

1653  East  Main  Slrwl 
Rochtster,  ^4•»  York      14609  USA 
(716)  482  -  0300  -  Phon* 
(716)  288  -  5989  -  Fox 


THE  LAW  OF  THE  EMPLOYMENT  OF  LABOB 


THE  MACMILLAN  COlfPANT 

MIW  VOMC  •  BOSTON  •  rilifvio 
•AN  nUNCMCO 

MACMILLAN  ft  CO..  Lmrm 

UMOM  •  BOMBAY  •  CALCOmt 

MBLaomun 

THK  MACMnXAM^CO.  OF  CAmPil,  tsa. 

TOBOHIO 


THE  LAW 

or  TBM 

EMPLOYMENT  OF  LABOR 


BT 

LINDLEY  D.  CLAEK,  LL.M. 


ytb  gotfc 
THE  MACMILLAN  COMPANY 
1911 


205260 


OomiMR,  ItU, 
bt  thb  maom  illan  coMPAinr. 

BMnpaaddKtralyiwd.  PnbUdwd  Normbtt,  1911. 


J.  0.  OuUv  Oo. — Bwwidi  4  BmMk  Oe. 


FREFACaS 

This  volume  is  an  attempt  to  cover  the  field  of  law  as  it  affects 
the  employment  of  labor  in  the  United  States.  It  is  at  once  evi- 
dent that  the  method  eannot  be  exhaustive,  shice  single  depart- 
ments of  the  subject  have  properly  formed  the  theme  of  a  num- 
ber of  treatises,  in  some  instances  massive ;  while  under  the  head 
of  legislation,  the  compilation  of  the  labor  laws  of  the  states  and 
the  United  States,  issued  frora  time  to  time  by  the  United  States 
Bureau  of  Labor,  has  grown  to  be  a  volume  of  inconvenient 
bulk.  It  has  been  thought  poarible,  however,  to  diaeun  and 
illustrate  by  the  citation  of  an  adequate  numbw  of  representa- 
tive cases  and  statutes  the  principles  of  the  common  law  in  their 
most  important  phases,  as  well  as  the  nature  and  trend  of  leg- 
islation, in  so  far  as  these  are  applicable  to  workmen  and  their 
emptoyers  in  their  relations  as  such,  in  a  single  volume  of  con- 
venient size.  No  detailed  account  of  the  itons  of  lepdatitm 
could  be  presented  m  a  work  of  this  character,  since  they  are 
shifting  so  rapidly  that  a  volume  could  hardly  be  put  through 
the  press  before  it  needed  revision.   A  summary  and  general 
view  of  such  laws  and  of  thdr  legal  construction  and  effect  will 
answer  the  purpose  of  the  student  of  the  qumtion  of  the  legal 
control  of  the  subjects  under  consideration,  while  sufficient  raf- 
erences  are  furnished  to  enable  the  pursuit  of  the  subject  in 
fur*.her  detail  if  desired.   An  effort  has  been  made  to  present 
with  practical  completeness  the  legal  principles  involved  in  pro- 
tective and  regulative  legislation  of  this  class,  in  so  far  as  they 
have  been  made  the  subject  of  judicial  det»mination  by  the 

V 


PBITAOI 


^V**'  *^  °'         it  «  believed 

that  its  value    a  knJ  hwdbook  is  United  chiefly  by  it.  bievi  ty 
•ad  that  it  will  n«mth4«  b.  iamd  in»tlv  iSr^^^ 
such  an  aspect.  '"—"■roionm 

Jj^^  P'^^  need  of  the  social  organisation  is  the 
•eeurlm  ol  safe  and  wholesome  conditions  of  worlc  and  an  ad- 

of  their  mutual  and  leeipraeia  riglito  and  intenste  so  that  th!.! 
.l^l.  be  neither  undue  adv«.t2r:or  untt^IL  «  slJ^;: 
Jil!J  !J*  -i^ce  such  legal  provision  as  existed 

n  ^^"1:  """^'"^^  body  of  customs 

wurts  of  En,l«Ml  and  America  to  sueh  an  extent  that  it  l^came 
a  dog  to  any  progressive  •djustment  of  law  to  changing  ecc 
no^o  conditions.   Clearly  a  policy  shaped  in  the  dl^^  tU 
hand  loom  «d  f on^  and  transportation  by  horse  power  could 
poorly  provide  for  the  needs  of  industry  toKlay.   The  common 
law  wduoed  to  a  oodified  fonnls printed  as  an  appendix  to  this 
volume  and  miffident  evidence  ol  ito  Inadequacy  is  afforded  if 
thw  code  «  compared  with  the  scores  of  statutes  compUed  in  the 
fifteen-hundred-page  volume  of  labor  laws,  forming  the  Twenty- 
jecond  Amiual  Report  of  the  United  States  Commissioner  of 
iMt,  presenting  the  enactments  of  the  legislatures  of  the 
various  states  m  their  attempt  to  pi«scribe  the  respective  rights 
and  duties  and  to  safeguard  the  physical  and  eeonomie  intereste 
of  the  parties  to  the  labor  contract.   There  is  a  feeling,  only  too 
weU  founded,  that,  despite  legislation,  the  dead  hand  of  outgrown 
doctnnes  of  the  common  law  restrains  the  courts  In  their  con- 
•truotion  of  statutes;  but  that  there  is  encouraging  advance  m 
this  respect  cannot  be  gunsaid. 

The  unusual  actiWty  at  this  time  of  •  number  of  states  and 


of  mknu  orguiiMtioni  in  •ttampCfaig  to  Mhrt  the  prabkm  of 

a  better  distribution  of  the  burdens  of  industrial  accidents  af- 
fords a  clear  indication  that  the  present  doctrine  of  employers' 
liability  will  not  much  longer  maintain  the  position  of  controlling 
importanoe  whieh  it  now  occupies.  That  the  fundamental 
asstmiptioos  of  tliis  doetrina  have  been  long  sinoe  outgrown  in 
the  destruction  of  actual  personal  oootaet  between  «n[rioyer 
and  workman  and  the  growtL  of  the  great  industries  <rf  trans- 
portation, manufacturmg,  acd  mining,  in  which  the  mutual 
reqxmsibility  of  fellow-workmen  becomes  impossible,  is  a  con- 
clusion that  cannot  be  diqiuted.  The  wideqnead  study  of  the 
principles  of  compensati<m  by  federal  and  state  '*~^*nissiflni 
and  otherwise,  and  the  enactment  of  compensation  laws  by  the 
federal  Congress  and  by  several  state  legislatures  are  doubtless 
but  the  forerunners  of  great  and  desirable  changes  in  the  atti- 
tude of  the  law-making  bodiea  and  the  courts  in  respect  of  this 
subject. 

To  what  extent  the  collective  bargaining  of  the  labor  union  is  to 
affect  the  contract  of  employment  is  another  unsettled  question. 
As  in  the  above  mentioned  matter,  it  is  a  question  of  absolutf 
individualism  giving  way  to  collectivism,  or  at  least  a  modifiet 
individualism,  as  a  result  of  faMMching  changes  in  the  indus- 
trial organisation,  for  which  the  workingman  is  not  primarily 
responsible.  It  is  not  too  much  to  say  th-t  epoch  i<»king 
decisions  affecting  labor  organizations  are  beint, ;  mde  and  to  be 
expected  shortly.  The  law  on  this  subject  is  in  an  unsettled 
condition,  and  will  doubtless  remain  so  for  a  long  time  to  come. 
The  diversity  of  interests  of  the  employing  and  employed  chuses] 
aj  they  are  now  conceived,  and  as  they  have  always  been  re- 
garded 80  far  as  history  gives  account  of  the  employment  of 
Ubor,  does  not  permit  an  anticipation  of  an  early  or  easy  settle- 
ment of  the  questions  involved  between  these  two  e'-jments  of  the 


Viii  PREFACB 

prodiudng  and  dirtributingforoei  of  society.  It  seems  hardly 
more  than  commonplace  to  say  that  the  more  nqridly  the 

reciprocal  rights  of  combined  and  delegated  representation  of 
the  two  parties  are  recognized,  the  more  rapidly  the  enstins 
problems  will  find  their  solution. 


WASHUfOTOir,  1911. 


LiNDLBT  D.  ClABK. 


CONTENTS 


CHAPTER  I 

TU  COKTKACT  or  EMPLOmXT 

nonoN 

1.  Hw       of  the  telatira  of  employwMid  employee.  FonnBof 

contracts.   Status  of  the  labor  contnet      ....  12 

2.  Conditions  of  the  contract  *      *  2I4 

3.  Freedom  to  contract.   Constitatioiud  gnamiteee    .      '.      '.  45 

4.  LimitatioDs  on  freedom  of  contract  .  '  '  a  7 
6.  PoUee  power   jlg 

6.  Term  of  the  contract   Implications  from  periods  of  payment  ft-ia 

7.  Enforcement  of  the  labor  contract.   Specific  performance  l».i4 

8.  ViolaUona  of  contracts  by  employees.   Recovery  of  wages  for 

partial  performance   14-W 

Statatory  provisions  for  enforcing  contracts.   Employera'  adl 
▼aneea.  Abaodimtng  aervice  ao  aa  to  endanger  pn^erty  or 

  16-28 

11.  Breach  of  contract  by  the  employer.   Damages     .      .  f*  yt 

12.  Grounds  for  discharge.  Sufficiency  ....['  jff^ 
18.  Other  methods  of  dissolving  the  oontract  relation.  Mutnai 

consent.   Expiration  of  term.   Sickness  or  death  of  parties 

Other  incidents  occurring  during  term.   Reaciasion  by  notice  80^ 

14.  Clearance  cards   88-86 

16.  Procuring  breach  of  contract   Motive.   Damages  .      '.      '.  3^-39 

16.  SUtotes  prohibiting  inteiferenoe  with  contracu  81M2 

17.  Right  of  employer  to  recover  for  injaiias  to  employee.  Prol 

curing  intoxication  48, 48 

18.  Civil  rights  of  employees.  PMteetfam  aa  votm.  Meateahte 

In  the  National  Qoard  — — — ~— r     ^  ^ 

CHAPTER  n 
Wa«M 

W.  Definition.  Work  in  vfolatimi  of  Uw.  Pairea  . 

20.  Rate.   Howflxed    ....  !r!I 

  47-88 

is 


X 


CONTENTS 


».  Hm  of  psyiiint.   DWiaiirf  «mploy6«.   BeUining  part 

28.  Place  of  payment  •...*..'*'* 

24.  Attachmenu,  gamiahmenu,  etc.  xinmptkiai'      *  *     *  e5_S7 

25.  Aaaignmentaofwagea.  Wage  broken    .     .      !  !     '  sric 

26.  Suit,  for  wage..  Attomeya' fee.    .      .  Sif 

27.  Mechanic.*  lien.  !  *      *  fll'2 

28.  Bonds  to  wcure  payment  of  wagM  .* go  m 

29.  LiabimyofrtocWioldef.ofcoiporatlon.forwaiedei>ta        *  m 

80.  Preference  of  wage  claims       •      •      •     7    .      .      *  «8  M 

81.  Payment  of  wages  in  Mrip.   Store  order.  (ul^o 

82.  Company  stores                                                   *      *  mfO 

88.  Freedom  of  employ«itMtnMl«a  Choie^  of  boudtaig  htioM*  I^Jn 

CHAPTER  m 
HooM  or  Labob 

M.  BegolaUon  of  hoon  of  labor.    Otrnttm^    Ootitdo  obpIq*. 

ment   Stotntes    .      .      .  wapwy 

86.  OonsUtutionaUty  of  Matnte.  Umiting  the  hoon'of  labor        .*  76-79 

86.  Sunday  Ubor.   Employers'  liabUity  for  injniiM  to  aanlonaa 

working  on  Sunday.  Earning.    .      7    .      .      .  . 

CHAFTKB  17 

KtontATioH  or  na  PknioAi  Conmom  or  Simonan 

87.  Statutory  control 

88.  Bagnlatlon  of  f^ri«i«kwoAriiopfc  Agricultural  machinl  " 


CONTENTS 


CHAPTER  V 
j^^^  Kmonnrr  oi?  WoMsir  ak^*  Crildbw 

CHAPTER  VI 
RiSTBicTiom  ON  Emplotbu 
M.  Bandaatfam,  wghtwUon,  etc.,  of  workmen    .     .  ^^,a^oo 
63.  Sutua  of  certified  employees    .  ....  108^10» 

M.  GrooDda  for  legUUUve  interference  .     .'      *     '      *     '  iTT?" 
66.  Age«»condltlcHiofeinpIojm«rt  ...*'' 
66.  ReridentWwiw..  Allen. 

57.  OoBTiet  labor   .  117.  IM 

 m,m 

CHAPTER  Vn 

LlABttlT     OF  EWLOTEBS  fO.  LwBWM  «0  iHnOnM 

68.  What  law  controlB.  Statutes 

60.  Buty  of  the  employer  to  exewfaeeari.  Degr.;  '  ' 
JO.  I^^dlnrtnunentaliUes.   Discretion ^mTempl-oyer*  ' 

62.  Repair  and  maintenance    Ifl'^ 

63.  Customary  Brthod  or  use.  Deiarture  by  employee'  '  *,« 
W.  faction.  Nature  and  degree.  SututL  .  '  "  ,„  }2 
J6.  ^e«hip  of  appliance..   RaUwaycar.              :  [      '  J^" " 

66.  Workmg  fo^    Numb«.  «h|  ,paMoatIon.  .  '  }«'  S 

67.  Rules.  Enfoioement  .  we,  136 
«.  lartrectfonsandwamlngi 186,187 

69.  Duties  nondelegable  .''*•*••  W7, 188 

70.  Negligence.   Proof   .  ', 

71.  Defenses  of  employe.   V6Unk  no^  JU  injuria      '           '  lao 

^"^r^lian^  ^umed:  Si  £ 

74.  Be^nelit..'  Accn*«.«e  «  h„  to'  .ui  ft.*  a^^" 

 148-140 


CONTSNTB 


•BOTIOH 


76.  Contribatory  negligence.  Proria^f  cmm  ....  wim 

76.  What  negUgenee  but  leoomy      ...  151  jgo 

77.  CompustiTe  negligence.  Statatea.      .      .      *      *      *  152' IM 

78.  The  feUow-wrvant  role.  Gronnda.      ....**  UA-ia 

79.  Common  employment    .      .                 '      *      *      *  lar  im 

80.  Contemplated riake.                                             '  {rl'JS 

81.  DepMtBWDtaldoetiliw  \I 

82.  Representotionoftheamptojw     ..'*'*  ,«! 

88.  Testofrank   iflO-lS 

84.  Superior  aenrant  doctrine      ....           '     '  im  im 

86.  Statua  of  manager  .*      .'  IM 

86.  Heada  of  departments  !      !      .'  164*  166 

87.  Character  of  act  as  test.   Dnalcapael^.      •      •      •      •  ' 

88.  Teste  not  mutnaUyexduaiTB  ....*!"* 

W.  Modification  of  employeiB' liability  by  statute.  EiigUsh  law'  16»Il71 
■0.  SUtutes  affecting  deaignatad  employmentB.  Hasaidooa  on- 

dertakings   171  172 

91.  Promise  to  repdr   172  173 

92.  Direct  oidera                                             •      •      .  172,173 

88.  Aasoraneea  of  safety                                               '  174  176 

94.  Variation  of  scope  and  «wne  of  «mpl<vm«it.  Voinnte^  .*  I76ll78 

96.  Details  of  work   178  170 

96.  ContracUwIthUboroiganlaatlona.  .  .'  179' isO 
•7.  Employers'  insurance  agaiaat  liabUitj.    Foima  Scope 

Mutual  companies   180-184 

ofamidoyaaa  lu-m 


98. 


CHAPTER  Vm 

WoBsmr's  CoimnmAnoir  Lavs 

99.  Federal  stotnte  of  1808  .... 
100.  Statestatataa  


187-  lOS 

188-  196 


CHAPTER  IX 
NaoLiUBNCB  OF  Emplotbbs 

101.  LUbili^  of  employees  for  their  negligent  acta.   Injories  to 
Wtow-aamnlfc  Injuriet  to  third  pewma.  Bonds.  Intozi. 

 189^1 


CONTENTS  xiii 

MMItlOH  VMM 

loa.  IMOOtj  of  the  employer  to  thM  paeons  for  neg^igenee  of 

oq^loTew.  JobKUaUU^  of  employer  and  ei^logree      .  Xl-aOi 

CHAFTBB  X 
SunDKr  Statctu 

108.  Liability  of  employers  for  taxes  of  employees       .      .      .  SOS,  206 

104.  Profit  sharing  by  employees.  Special  stock  ....  a06 

106.  Fmrions  for  emphqrees   906,207 

106.  CottperatiTe  associations   207 

107.  Workmen's  trains   207 

108.  Employment  offices   806-211 

109.  Boreaus  of  labor   911,  SIS 

CHAPTEB  XI 
Tbadi  ahd  La  box  AssooiAnom 

110.  Nature    213-217 

111.  Status  at  common  and  statute  law   217-226 

112.  Rules,  by-laws,  eto.   236-230 

113.  Membeisbip   230-236 

114.  Collective  agreements   235-240 

116.  The  closed  shop   240-246 

116.  The  union  label   240-260 

117.  BestrietiTe  wimblnattons.  Anti-tmst  laws    ....  S60-366 

CHAPTER  XII 

La  BOB  DiSPDTXS 

118.  Cons{rfndflB   257-261 

110.  Strikes   261-272 

120.  Persuasion  or  incitement  to  strike   i.-27d 

121.  Picketing   876-288 

122.  Boycotto  !      !      .  282-293 

188.  BlackUsta   208-296 

124.  Interference  with  employment,  intimidation,  ^  .      .      .  206-300 

126.  Remedies  by  suits  at  law   800-804 

126.  Injonetions   305-323 

127.  Contempts   323-331 

128.  Mediation  and  arbitration   331-340 

AmxDix :  A  code  of  the  common  law   841-346 


LAW  OF  THE  EMPLOYMENT  OF  LiBOB 


CHAPTER  I 
THE  OOimuCT  Of  UPLonimr 

Sicnoir  1.  The  BagU  cf  (h»  Rdaiion  of  Employer  and  Em- 
tioyee.  —  1n  order  that  the  status  of  employer  aod  employee 
may  come  into  existence  there  must  be  a  contract  or  agreement 

between  the  employer  or  his  representative  and  the  person  enter- 
ing upon  service  or  his  representative.   Such  a  contract  may  be 
informal  to  the  extent  of  being  only  inferable  from  the  conduct 
of  the  parties/  or  it  may  be  carefully  drawn  in  writing,  igned, 
and  witnessed.  Contracts  which  cannot  be  completed  within 
one  year,  to  be  enforceable,  must  be  in  writing,  being  within 
the  statute  of  frauds.'  In  case  of  an  impUed  contract,  sufficient 
facts  must  be  shown  to  support  it,»  since  a  mere  volunteer  can 
neither  collect  wages  nor  hold  the  person  served  liable  for 
mjuries.«  No  practicable  form  of  contract,  however  elaborate, 
could  be  presumed  to  embody  all  the  conditions  and  conse- 
quences that  result  from  the  consent  of  the  parties,  the  one  to 

» Nimmo  t.  Walker.  14  La.  Ana.  681. 
^«l«h-«r  »  20  Job-.  88  <N.Y.) ;  U«.  ..  T*,.  ,14  Fri.  71. 


3  MW  OF  THB  BMPtOTMENT  Of  LABOK 

render  «mce,  «,d  the  other  to  receive  it  to  ^  «mip.u. 
ton  therefor  In  other  word,,  there  is  formed  .  eutu.  7^ 
two  1-rt.^termined  by  long  the  ruling,  of  the  court 
to«nnu«W  .od  nany  .ututo^r  en«tment,.  the  de 
of  whid.  «.  h,  b.  know.  «Jy  by  .  «,n,ider..io;  of  th. 
wh*  Uw  ,0^  to  ^  ^.^^ 

attempts  to  exprew.  vuuirirei 

There  i,  not  in  the  United  Stnten,  nor  Im,  there  ever  be«. 
emce  the  establishment  of  the  Govenonmt,  ^  be- 
tween contracts  of  hiring  and  other  .OBt»ct^  «  far  the 
«»^controll.„g  principles  of  law  are  concerned.  Compel 

«d«*c«.t  co^rierafon,  are  the  es«„tials  here  as  elsewhere. 
The  «ne  hnutaton^  neither  raore  nor  le»,  „  to  immoral  act, 
«  those  oth«w«  contraVBring  public  poUcy  affect  the  con- 
tact of  employment  «i  thqr  do  other  conto**..  But  the 
^ment  havmg  been  reached,  the  law  Intenrme.  to  «co«  to 
both  part.es  certain  rights  and  defenses  that  h.™  been  «m. 
ce,ved^  through  a  long  series  of  adjudication,  «.d  legidation, 

l^^T- °  ?  '"""^  °'  P^i"  «»  the 

e»^t,  a,.d,mwhat  may  fairly  be  said  to  be  an  increasing 
d^.  the  mt«».,  ^  of  .u,  ^  ^  ^ 

Section  2.  C^aOim.  ^  Oe  -  Among  the  condi- 

tjons  .mposed  by  Uw,  but  not  at  .U  .ppeari^j  ^  eurtomi^ 
rJy  used  contract,  are  the  requirement  that  th.  «nployee  d»n 
W  engaged  only  m  Uwf  ul  pursuits,'  that  he  shall  be  treaW  with 
.e.«.n.blc  regard  to  health  «>d  «,Bfort,.  that  he  diaU  not  b. 

w  HMD.  177  (N.y.) ;  LuBke  f.  Hotchkiii.  37  Conn.  219. 


THE  CONTRACT  OF  IMFU>TlflNT 


espoMd  to  other  ridn  than  tbow  reMonably  inckteit  to  his 
anploymmt/  and  that  the  eo&ditioiM  sunoundiiig  va^k^mait 
shall  not  be  corrupting  or  immoraL*  On  the  other  hfwid^  an  em- 
ployee is  supposed  to  be  competent,'  to  obey  reasonable  faistruo- 

tions  and  commands/  to  use  ordinary  care  m  the  performance 
of  his  work,*  and  to  have  due  regard  for  his  master's  interests.* 
Rules  of  the  employer  or  customs  of  the  trade,  not  in  terms 
forming  a  part  of  the  contract  of  employment,  must  be  shown  to 
have  been  knowu  to  both  parties  at  the  time  the  contract  was 
entered  mto  if  they  are  to  be  ineorporated  therein  as  a  matter  of 
defense  in  an  action  at  law.'  And  a  mere  continuance  b  service 
after  becoming  aware  of  regulations  not  known  at  the  time  the 
contract  was  made  is  only  evidence  tending  to  show  assent,  and 
is  not  conclusive." 

Where  the  rate  of  wages  is  not  definitely  fixed,  custom  may 
be  referred  to,  and  the  court  will  undertake  to  find  out  what  the 
services  were  reasonably  worth  and  award  a  quantum  meruit,* 
due  regard  being  had  for  special  skill  or  professional  ability ;  >« 
and  so^of  the  other  factors  that  enter  mto  a  contract  of  employ- 
ment, though  the  rules  of  common  law,  the  effect  of  custom,  and 
even  the  terms  of  the  contract  itself  are  becoming  more  and 

« See  Chapter  VI. 

•  Warner  ».  Bmith,  aupn;  Berry  t.  Wallace,  Wright  687  (Ohio). 
» Wauf  h  t.  Shttnk.  80  Pa.  St.  180 ;  Pinter  t.  FUtt,  74  lU.  480. 

•  Lawrence  t.  Gullifer,  38  Me.  632. 

•  MoCracken  ».  Hair.  2  Speera  266  (8.C.). 

•  Oower  t.  Andrew.  69  Cal.  119,  43  Am.  Rap.  243. 

•  Collins  V.  Iron  Co.,  116  Maas.  23. 

•  Bagley    Batea,  Wright  705  (Ohio) ;  Millar  t.  Cuddr,  48  Mieh.  37S.  88  Am. 

Rep.  181.  ^  ^* 

**  Stookbiidte  t.  Ciooinr,  84  M*.  849. 


4  LAW  OF  TBI  mPLOTMIKT  OF  LABOR 

mow  affected  by  itotutory  enactmenta  and  the  construction 
Pttt  upon  them  by  the  courti  of  the  various  states. 
The  iiiM»|  rule  applicaWe  to  the  foniurt^ 

there  must  be  a  meeting  of  the  minds  ol  the  partiee  thereto,  is  In 
force  in  labor  contracts  to  prevent  fraud  and  miarapiesentation 

as  to  the  conditions  in  existence  in  the  employer's  works  or 
business ;  but  a  few  states  have  enactments  looking  to  the  more 
^ific  prohibition  of  deception,  and  particularly  in  the  matter 
of  the  existence  or  non-existence  of  strikes.'  The  natura  of  the 
employment  and  the  prevalent  sanitary  conditions  must  not  be 
mwepresented,  under  like  penalty,  though  with  reference  to 
strikes,  It  18  in  most  cases  made  unUwful  to  fail  to  give  notice 
where  they  are  in  existence,  while  only  actual  false  itatement 
with  reference  to  other  conditions  is  condemned. 

Section  3.   Freedom  to  Contract. -Whether  the  right  of 
contract  is  inherent  in  free  manhood,  as  has  been  concluded 
from  the  guarantee  of  Magna  Chari;a  that  "No  freebom  man 
BhaU  be  disseised  of  his  free  tenement  or  liberties  or  his  free  cus- 
toms,"  taking  "customs"  to  Include  freedom  of  trade-  or 
whether  it  depends  on  such  guanntees  as  are  found  in  our 
national  and  state  constitutions,  is  a    /estion  of  historical  in- 
terest,  but  not  of  controlling  importance.  There  is  frequent 
reference  to  the  fourteenth  amendment  to  the  Constitution  of 
the  Umted  States  in  cases  in  which  the  freedom  of  contract  is 
d.scu8sed,«  as  well  as  to  the  similar  provisions  of  the  state  consti- 
tutions  relative  to  the  protection  of  liberty  and  property.  While 
these  seem  practicaUy  to  embody  the  doctrine  of  the  clause  of 

eh  'S^  'iS^''^"^  ^  ™-  ^  '      «•  Mont..  Act-  1903 

oh.  80   Ore,..  Acto  1903.  p.  103 ;  Tenn..  Act.  1901.  ch.  104.  ' 


TBI  OONTSACT  OF  mPLOTlflNT  5 

MifM  Caittta  q«ot«I  »bov»,  it  i«  Buffioient  for  our  preae^^ 
POM  that  theie  gomteet  odtt,  and  that,  with  the  common 
acoeptuoe  of  the  view  that  the  proteetioii  of  property  involves 
the  protection  of  the  right  to  main  leaeonable  oontnurte  with 

reference  to  its  acquisition  and  use,  thqr  an  undentood  to 

guarantee  the  freedom  of  the  contract  of  employment.* 

Labor  is  the  workingman's  capital,  and  it  is  hio  right  to  em- 
ploy it  or  dispose  of  it  as  may  appear  to  his  judgment  best  in 
the  oonditiooB  in  which  he  finds  himself,  subject  only  to  the 
rules  of  law  that  f(Hrbid  oontraets  which  are  against  pubUc 
policy.*  Eveiy  man  has  the  right  to  earn  his  Kving,  or  to  pur- 
sue  his  trade  or  busmess,  without  undue  interferenoe,  a  right  of 
absolute  freedom  to  employ  or  to  be  employed,'  to  make  coq- 
tracts  with  reference  to  service,  whether  as  employer  or  en- 
ployee,  or  to  refrain  from  making  them,  for  any  reason  or  no 
reason,*  and  such  a  right  is  both  a  liberty  and  property  right 
within  the  guarantees  of  the  federal  Constitution.*  Such  a 
rtiMjttte  as  that  of  Indiana,  therefore,  which  prohibits  employers 

from  discriminating  agauwt  persons  or  classes  of  persons  seeking 
empteyment,  by  posting  notices  or  otiierwise,*  is  obviously  of 
no  value,  smoe  tiie  employer  is  as  free  to  reject  as  the  employee 
is  to  refuse  any  proposition  for  employment,  no  matter  by  wixm 
made,  or  for  what  reason  held  undesirable. 

!  iT^''  ^rr  ^f""-         ^•^'^y*  ^  N.  J.  Eq.  769.  63  Atl.  230. 

L.  k  Sr/f^rir    I:?.:'?  ^  ^'      ^ '  New  York.  C.  4  St 

li.  S.  Ca  t.  Selukffer.  66  Ohio  St.  414,  62  N.E  1036 


•         WW  or  TBI  IMWOTIMNT  OF  labor 

h.8  o„n  need,  «d  tb«  <rf  hi.  dq»n<tart.  wTb^^  ^, 

"J"""*/,  orguuMd  Uhor  pnTidM  "out-of-work"  md  ".tril." 
funds,  to  tide  the  menbtnUD  onr  Uu.  ~  ? 

of  leg^Iafon  Peking  to  fa  u„  ^jja™.  T^^'t 
^  or  for  ,peo:.e  iod>^^e,  or  ^^'^ 

to*  to™  „  «,w  .  ve.y  e„„«der,ble  b«iy  „,  ,„„h  hUOMn, 

•DMB,  the  nt.  of  wage.;  to  th.  hours  of  Ubor,  the  conditiJ 

wrthu,  the  «ope  of  statutory  ^  „  ^^l^ 

■«»gm«d  differene.  between  the  mn^  mohyer  Z  Z 
average  employe,  in  ^  cJ^rJ^Tc^J^ 

"  the  contract  of  employment 

th.  ^  o,  a  few  states,  taLTZ  ' thTwo*:," 
l^^m  ««  »t«te  of  New  York  in  the  ye„ 

18S7,to<taft,««b,„U^^  ThisdraftwasacodiL 


TBI  CONTRACT  OF  EMPLOYMENT 


7 


tion  in  pretty  complete  form  of  the  common  law,  and,  though 
it  was  rejected  by  the  state  for  which  it  was  prepared,  it  was 
adopted  by  California,  Montana,  and  the  Dakotas.'  It  is,  as 
indicated,  nothing  more  than  a  restatement  of  the  principles 
<rf  the  eraiiMm  law,  10  that  while  it  embraces  nuuy  of  the  tc^ict 
to  be  couddkred  in  the  ineaent  undertaldng,  its  provisions  call 
for  no  discussion  apart  from  that  given  the  rules  laid  down  by 
the  courts  as  the  common  law. 

Section  5.  Police  Power.  —  The  question  naturally  arises  as 
to  the  right  or  authority  of  legislatures  to  intervene  in  the 
matter  of  contracts  of  employment  so  as  to  modify  the  other- 
wise prevalent  rule  of  unrestricted  freedom;  and  the  answer  is 

that  it  is  only  as  an  onrdse  of  the  so-called  police  powers  of  the 
states  that  mich  acts  can  be  accepted  as  valid.  What  these 
police  powers  are  is  not  a  matter  of  accurate  d^nition,  inas> 
much  as  they  concern  the  policy  of  the  individual  states,  which 
is  subject  to  growth  and  change  with  changing  industrial  and 
social  conditions.'  The  police  power,  in  its  broadest  accepta- 
tion, means  the  general  power  of  a  government  to  preserve  and 
promote  the  public  welfare  by  prohibiting  all  things  hurtful  to 
the  comfort,  safety,  and  welfare  of  society,  and  establishing 
such  rules  and  regulations  for  the  conduct  of  aU  persons  and  the 
ust  and  management  of  all  property,  as  may  be  conducive  to 
the  public  interest.'  It  relates  to  the  safety,  health,  morals, 
and  general  welfare  of  the  public.  Both  property  and  libwty 

«  See  Appendix.  This  code  has  been  amended  in  some  respects  in  at  leart 
three  of  the  states  named,  but  is  reproduced  in  practically  ita  origiiua  form  as 
presenting  in  brief  the  principles  of  th«  commoD  law  governing  the  contrset  of 
employment.   It  Is  referred  to  as  the  Field  Code,  from  its  chief  editor. 

»  Atldn  t.  Kuina.  m  UJ3.  207.  24  Sup.  Ct.  124 ;  Holden  *.  He  -  dy,  169  U.S. 
860. 18  tep.  Ct  883.  •  Am.  4e  Eng.  Cye.  of  Law.  Vol.  22.  p.  810. 


8  I^W  OF  THE  BMPLOYIONT  OF  LABOR 

to  declare  J  '«W«I»""<»  <rf  the 

WbuMl  tlurt  while  it         J  r  !  ™  '"'«'«* 

"Whiiriir  them  irrevocably  upon  the  state 

oontr^  i.  th.  «^t  „  whM  .  ^^T^-^ 


THE  CONTRACT  OP  EMPLOYMENT  9 


its  determination  as  a  rule  for  future  action  must  yidd  to  the 
legislative  will  when  expressed  in  accordance  with  the  organic 
law.  The  legislature,  provided  it  acts  within  its  constitutional 
authority,  is  the  arbiter  of  the  public  policy  of  the  state."  ' 

Section  6.  Term  of  the  Contract.  —  Apart  from  those  con- 
tracts which  by  their  terms  fix  the  period  of  their  duration  stands 
the  body  of  contracts  to  hire  generally  or  for  an  indefinite  time, 
forming  the  vast  majority  of  labor  agreements.  Id  most  juris- 
dictions m  this  country  a  contract  for  an  indefinite  period  is, 
subject  to  proof  to  the  contrary,  terminable  at  any  time  at  the 
option  of  either  party.'  An  unsupported  promise  for  permanent 
employment  is  of  this  nature ; »  but  if  an  employee  has  secured 
an  option  to  his  contract  for  permanent  employment  by  waiv- 
ing a  claim  for  damages,^  or  by  giving  up  a  competing  business 
to  engage  in  the  defendant's  service,*  the  contract  cannot  be 
set  aside  merely  at  the  choice  of  the  employer. 

According  to  the  English  rule,*  which  is  also  largely  foUowed 
in  this  country,  the  term  of  the  contract  may  be  inferred  from 
the  conditions  agreed  to  as  to  the  times  of  pajnnent,  payments 

I  Chicago,  B.  &  Q.  R.R.  *.  McOuire,  210  U.S.  £40, 31  Sup.  Ct  250. 

•  Lord  *.  Gddbcov,  81  Cal.  506,  15  Am.  St.  Rep.  82 ;  Kuuas  P.  R.  Co.  t. 
Roberqon,  3  Colo.  142 ;  Babcock.  etc.,  Co.  e.  Moon,  82  Md.  161 ;  HntwhM^  ■. 
Godkin,  63  App.  Div.  468,  71  N.Y.  Supp.  620. 

» Lord  ».  G<ddb«rg,  aupn;  Loukvflle.  etc.,  Co.  t.  OAitt,  00  Ky.  427, 36  8.W. 
181 ;  St.  Louis,  I.  M.  ft  S.  R.  Co.  ».  Mathews,  64  Ark.  398,  42  8.W.  902. 

*  Smith  ».  R.  Co.,  60  Minn.  330, 62  N.W.  392 ;  Pierce  ».  R.  Co.,  173  U.S.  1, 19 
Bup.  Ct.  335 ;  Pennsylya&is  Co.  «.  Dolan.  6  Ind.  App.  100,  82  N.E.  802  (eon- 
tiMt  for  "steady  and  permanent  employment"  held  to  be  one  for  life,  or  so  long 
u  the  emidoyee  ahoold  be  able,  ready,  and  willing  to  perform  the  services  assigned 
by  the  company) ;  Steams  ».  R.  Co.,  112  Mich.  661.  71  N.W.  148.  But  M* 
Texaa  M.  R.  Co.  t.  Morris,  20  Tex.  Qv.  App.  401. 60  S.W.  102. 

•  Camig  t.  Carr.  167  MaM.  644. 46  N.E.  117. 3S  L.RJk.  813,  and  note. 

*  Emmena  *.  Ederton,  4  H.L.C.  640 ;  BuAiatfhMB  t.  CMial  Co.,  58  L.TA. 
(N.S.)886.   See  Wood,  M.  ft  S.,  272. 


10 


LAW  OP  TM  EMPtOTMlNT  Of  LABOB 


^  <ii^  weA.  nuaith,  or  year  »faing  the  presumption  th.t 
tT.r^!T^  tbe  taM  th  of  time  the  oo.tr«t  U  to  ! 
or  rather  that       «»k  the  time  ,t  whld.  it  a„>y  fc.  Ci 
«a^dbye.ther  ^y,  D-Uutep«,vi*„<rf  th.!™" 

0  control,  but  to  their  .bee««,  ^Hrting  peri^ 
of  payments  or  measurements  of  sala^T^L 

monthly,  ete .  is  of  great  weight  to  deUuni^e 
^.ntract..  Where  the  time  is  not  todicatedM'^f 

been  held  to  be  an  md.6mt.  one; «  but  no  good  reason  appears 
why,  ■»  a-b,«..e  of  other  «ndde»ti™„SpL.gtte  S 
of  such  ev,dence,  a  contract  at  .y«„,y„..  L^C^t 
ferent  footmg  from  a  hiring  by  the  week  or  month,  «.d  ZZ, 

OuaJ^^  .       °  ""^  '» «™ce  after 

tteeqwrtonof  «.  .greed  or  to>plied  term  of  contract,  the  h>, 

"4N.W.432.  B«^..S^to  34?^".  "h"'^^^' 

'JFf'  ••  ^  Co..  M  Ohio  8.  i^r'Si.'r  " 

No«r:;c::j,-.:'srar,,TL*r -  » 

1  T«bb.  ,.  Camal„„  Co.,  2a,  M„.  5«,  je  N.I!.  g21 

CHW.  ise  Ma  App        ImLw  8.     •  *~«''<'  «• 

•M«j~»rt     CoriM  Co.,  200  Mim  1  as  v»         «.  , 
Work,  103  Mich.  124  61  N  w  «i,    «       ^  Cb««l»H^  ,,  s^v. 

Oo.  188,  Kirk..  H«,;,!;,„^'^:  "~    ^'■»'^a>..  03>„.2,9,, 


THE  CONTRACT  OF  EMPLOYMENT  11 


presiunes  that  the  original  contract  is  renewed  as  to  both  period 
and  rate  of  payment.^  The  Field  Code  contains  the  above  pro- 
visions as  to  implied  term  and  renewal  in  statutory  form.' 

Opposed  to  the  doctrine  of  implied  term  set  forth  above  is 
one  that  no  inference  whatever  is  to  be  drawn  from  the  use  of  the 
I  words ' '  week,"  "  month,"  or  "  year  "  in  fixing  the  rate  of  wages.* 
One  writer  goes  so  far  as  to  say  that  the  rule  is  inflexible  that  a 
hiring  at  so  much  a  day,  week,  or  year  raises  no  presumption  as 
to  the  length  of  time  the  service  is  to  continue,  and  that  the 
employee  is  charged  with  the  burden  of  proving  that  any  other 
than  an  indefinite  hiring  is  meant,  terminable  at  the  will  of 
either  party.*  In  this  view,  a  hiring  by  the  month  can  be  ter- 
minated at  any  time,  either  during  the  month  or  at  its  end, 
without  notice  ;*  and  the  word  "  salary  "  imports  nothing  as  to 
term,  even  whox  stated  as  a  yearly  salary.*  This  statement  is 
obvioudy  jo  sweeping,  and  contrary  cases  are  to  be  found  in 
some  of  the  jurisdictions  from  which  citations  come  in  support 
of  it;*  and  the  better  reason  clearly  favors  the  attaching  of 
some  measure  of  significance  to  the  designations  of  periods  of 
time,  even  though  the  principal  idea  is  that  of  rate  of  payment 
and  not  of  term  of  employment. 

I  Chemical  Worki ».  Pender,  74  Md.  16, 21  Atl.  686 ;  Tattenon*.  Mfg.  Co., 
106  Ma«.  56 ;  Adama  «.  Fitspatriok,  128  N.Y.  124, 26  N.E.  143. 

•  See  Appendix. 

•  Weidman  t.  United  Cigar  Stores  Co.,  223  Pa.  St.  160,  72  Atl.  377. 

•  Wood,  M.  ft  S.,  2d  ed.,  see.  186. 

»  The  Rescue,  116  Fed.  380 ;  The  Pokanoket,  156  Fed.  241  (CCA.) ;  Evans 
•.  R.  Co.,  24  Mo.  App.  114 ;  Haney  t.  Caldwell,  35  Ark.  156 ;  Frank  v.  Maternity, 
•to.,  Co.,  107  N.Y.  Supp.  404. 

•  Edwards  v.  Seaboard  ft  R.  R.  Co..  121  N.C.  490. 28  S.E.  187 ;  Marttn  t.  Ina. 
Co.,  148  N.Y.  117,  42  N.E.  418. 

» The  Hudson,  Olcott  396,  Fed.  Cas.  No.  6831 ;  Zender  v.  Seliger-Toothil 
Co.,  39  N.  Y.  Supp.  346 ;  Jones  ».  Trinity  Parish  Vestry,  19  Fed.  69. 


12         LAW  OF  THE  EMPLOYMENT  OF  LABOR 

Entire  contacts,  or  those  which  require  complete  performance 
before  any  part  can  be  considered  as  performed,  aUow  no  pro- 
por.ionate  recovery  for  part  performance,*  -  a  rule  which  may 
weU  be  held  to  apply  to  a  sailor  shipping  for  a  voyage  or  a  tenZ 
engaging  to  make  a  crop.   The  implication  of  terms,  as  from  a 
hinng  by  the  month  or  year,  has  been  held  to  carry  with  it  the 
condufflon  that  such  a  contract  was  entire,  i.e.,  for  full  periods 
of  months  «  years,  and  the  obvious  hardship  of  such  a  rule  and 
the  faUure  of  the  reason  therefor  in  many  cases  whe:  e  it  is  clearly 
practicable  to  consider  contracts  as  severable  have  led  to  the 
rejection  by  some  courts  of  such  »  rule,«  which  rejection  may  in 
turn  have  had  something  to  do  with  the  modification  of  the  rule 
^  to  implied  terms;  since  it  is  obvious  that  if  the  employee 
claims  the  right  to  hold  his  employer  to  payment  for  enL 
muts  of  tune  of  employment,  he  is  equitably  obligated  to  render 
entoe  units  of  s«^ce  or  waive  claims  for  fractional  parts  of  the 
umt  of  tmie  dunng  which  he  may  have  worked,  be  it  week, 
month,  or  year.' 

SEmoN  7.  Brifcrcenmt  <^  the  Labor  Conl«id.-A  prime 
consideration  m  comiection  with  any  agreement  is  the  matter 
of  Its  enforcement,  i.e.,  the  question  as  to  procuring  the  actual 
specific  performance  of  the  act  concerning  which  the  agreement 
was  made,  or  .e  redress  available  if  this  is  not  feasible.  In 
general,  contracts  are  enforceable  in  equity  according  to  their 
terms,  unless  there  is  an  adequate  remedy  in  a  suit  at  law  for 
money  damages.  The  Ubor  contract  is  an  exception  to  the 


THE  CONTRACT  OF  EMPLOYMENT  18 


general  rule,  no  enforcement  of  the  specific  performance  cf 
merely  personal  services  being  granted,'  because  of  the  inability 
of  the  courts  to  supervise  or  insiu-e  their  execution,'  as  well  as 
because  such  enforcement  would  savor  of  involuntary  servi- 
tude.* An  onployee  contracting  to  r^der  exclusive  services  of 
a  unique  or  extraordinary  character/  or  whose  b'each  of  con- 
tract «70uld  involve  the  probable  disclosure  of  trade  secrets,* 
may,  however,  be  enjoined  from  rendering  service  to  another 
during  the  period  of  time  for  which  the  previous  contract  was 
to  run.  The  application  of  this  remedy  will  be  restricted  to  a 
reasonable  length  of  time,*  though  the  restriction  as  to  time 
doc«i  not  apply  to  the  matter  of  the  disclosure  of  trade  secrets, 
that  not  being  construed  as  a  contract  in  restraint  of  trade.' 
A  perpetual  injunction  will  therefore  lie  against  the  disclosure 
of  trade  secrets  by  an  employee  who  has  been  inducted  there- 
into under  an  agreement,  express  or  implied,  that  they  shall  not 
be  disclosed ; '  and  an  employee  is  bound  by  such  an  agreement 
without  regard  to  the  methods  by  which  he  obtained  his  knowl- 

I  Arthur  «.  Oakes,  63  Fed.  310 ;  Roquemor  A  Hall  t.  Mitchell  Bros.,  167  Ala. 
476,  62  So.  423 ;  Iron  &  Steel  Co.  *.  Nichols,  73  N.J.  £q.  684,  69  Atl.  186 ;  Ga. 
Code,  see.  4919. 

I  Wm.  Rogers  Mfg.  Co.  v.  Rogers,  68  Conn.  366,  20  Atl.  467. 

•  Clark's  Case,  1  Blackford  (Ind.),  122, 12  Am.  Dec.  213. 

•  Lumley  ».  Wagner,  1  De  Gex,  M.  A  G.  604 ;  Keith  ».  Kellermann,  109 
Fed.  196 ;  McCaU  «.  Wright,  198  N.Y.  143,  91  N.E.  616 ;  MoCauU  t .  Brahsm, 
16  Fed.  37;  Ga.  Code,  mo.  4919. 

•  Harrim  i.  Sucar  RaOainc  Co.,  116  Fad.  804  (C.CJL) ;  MeCaD  t.  Wiigbt, 
tupra. 

•Haniaoat.  Sugar  Rd.  Co..  tupra;  Iron  A  Steel  Co.  t.  mehob,  mtpn; 
mt  also  Marble  Co.  «.  Ripley,  77  U.S.  (10  Wall.)  339. 

'  Jarvis  ».  Peck,  10  Paige's  Ch.  118  (N.Y.) ;  Taylor  t.  Blanchard,  13  Allen 
870  (Mass.),  90  Am.  Dee.  203 ;  Thumt.  Tlocsynski,  114  Mioh.  149, 72  N.W.  140. 

•  Peabody  t .  Norfolk,  98  Maaa.  463 ;  Stone  •.  Goss.  66  N.J.  Eq.  766, 66  Atl. 
786 ;  H.  B.  1^0^  Sooa  Co.  t.  Cott-A-Lapp  Co.,  169  Fed.  160. 


14 


LAW  OF  THB  SMPLOTMBNT  OF  LABOR 


edge  of  the  secret.*  An  agreement  that  is  so  l»oad  as  to  pre- 
clude the  disdoeure  or  use  oi  one's  own  secrets  or  discoveries 
made  during  employment,  or  of  all  the  treatments  and  pro- 
cesses used  by  his  employer,  whether  secret  or  not,  is  not 

enforceable  by  injunction.' 

Section  8.  Violations  of  Conirada  by  Employees.  —  Actions 
for  damages  are  available  for  the  violation  of  labor  contracts  as 
in  the  case  of  other  broken  contracts,*  though  the  damages  must 
be  shown  to  be  actual  m  order  to  support  a  recoviery.*  Inas- 
much, however,  as  it  is  often  true  that  a  judgment  against  the 
employee  will  ful  to  secure  returns,  while  one  against  the  em- 
ployer will  have  value,  the  consequence  is  that  in  such  cases 
there  is  a  condition  in  which  one  party  can  violate  his  contract 
without  liability,  while  it  is  enforceable  against  the  other.  The 
practical  effect  of  this  condition  is  modified  by  the  fact  that  the 
term  of  hiring  is  customarily  indefinite  and  general  and  termin- 
able at  the  will  of  either  party.  Compulsory  servitude,  which  is 
prohibited  by  the  thirteenth  amendment  to  the  Constitution 
of  the  United  States,  would  be  too  nearly  approached  by  a  con- 
struction of  law  that  would  compel  service  beyond  a  voluntary 
rendition  of  it;  while  to  compel  employment  would  not  be 
allowed,  since  that  would  be  an  infringement  on  the  freedom  of 
contract,  *  which  cannot  be  waived,  even  by  contract.' 

A  peculiar  provision  found  in  the  Field  Code  is  one  that  seems 
to  imply  that  a  contract  for  two  years  or  under  can  be  enforced 

•  Tbum  r.  Tlocrynaki,  supra.  *  Iron  &  Steel  Co.  t.  Nichols,  supra. 

»  Word  r.  Winder,  16  La.  Ann.  Ill ;  Payne  v.  Western  &  Atlantic  R.  Co.,  13 
Lea  507  (Tenn.) ;  Hamblin  ».  Dinneford,  2  Edw.  Ch.  533  (N.Y.). 

•  Hasselman  Printing  Co.  «.  Fry,  9  Ind.  App.  393,  36  N.E.  863. 

•  Reid  lee  Cream  Co. «.  Stephens,  62  111.  App.  334. 

•  mton  *.  EekHitoy,  6  EU.  *  BL  47. 


THE  CONTRACT  OF  EMPLOYMENT  15 


in  the  skates  adopting  it,  the  law  stating  that,  except  b  the 
case  of  apprenticeship,  no  contract  can  be  enforced  against  an 
employee  beyond  the  term  of  i  .  o  years  from  the  commencement 
of  services  under  it.^  This  cannot  be  construed,  however,  as 
looking  toward  an  enforcement  of  specific  performance,  which 
is  prohilnted  by  statute,'  Imt  only  as  setting  a  period  to  con- 
tracts pving  rise  to  actions.  It  is  not  held  to  make  the  contract 
void  as  against  the  onployer,  but  only  to  leave  it  to  the  election 
of  the  employee  whether  he  will  continue  service  thereunder. 
If  he  chooses  to  do  so,  he  may  also  sue  for  the  value  of  his 
services  in  an  action  on  a  quantum  meruit,  though  the  contract 
may  be  referred  to  by  the  employer  as  presumably  fixing  the 
value  of  the  services  contemplated.* 

The  unwarranted  abandonment  of  a  contract  pves  rise  to  the 
^  J.  ^ion  of  the  recovery  of  unpud  wages  earned  by  the  onployee 
before  leaving  servioe.  Whm  the  contract  is  entire,  so  that  no 
part  of  it  can  be  said  to  be  completed  before  the  entire  work  is 
finished,  no  recovery  can  usually  be  had.*  This  rule  has  been 
incorporated  in  statute  law.*  A  contract  for  a  fixed  period, 
whatever  its  length,  is  an  entire  contract,  and  falls  within  the 
above  rule.*  The  rigor  of  this  rule  has  been  objected  to  in 
favor  of  an  equitable  recognition  of  the  value  of  the  portion  of 

Civ.  Code,  sec.  1980.   See  Aiqwiidiz. 

*  . :  1.  Civ.  Code,  leo.  3390. 

-..  •.  Bancroft.  189  Cal.  78, 72  Pm.  717. 
..awkins  ».  Gilbert,  19  Ala.  64 ;  Dugan  v.  Anderson,  36  Md.  667,  11  Am. 
Rep.  609 ;  Goldstein  «.  White,  16  N.Y.  Supp.  860 ;  Davis  •.  Maxwell,  12  Meto. 
286  (Mass.) ;  Dunn  t.  Moore,  16  lU.  161. 

•  Ark.  Dig.  seo.  6028 ;  Latham  t.  Barwiok,  87  Ark.  328. 1 13  S. W.  646. 
•Hfldebrand  t.  Art  Co..  109  Wis.  171,  86  N.W.  268;  Wright  t.  Tumw,  1 

Stew.  29  (Ala.),  18  Am.  Dec.  25 ;  Isaacs «.  McAndrew,  1  Ifont  487;  IfelfOUaf. 
VandeiUp,  12  Johns.  166  (N.Y.),  7  Am.  Dec.  299. 


16         LAW  OP  THE  EMPLOTMSNT  OF  LABOR 

the  services  rendered/  and  a  more  lenient  view  is  ft*Wn  in  a 
number  of  jurisdictions,  allowing  the  employee  to  recover  the 
value  of  the  labor  performed,  less  any  damages  caused  by  his 
failure  to  complete  his  contract.^   It  is  the  general  rule  that 
where  an  entire  contract  is  broken  by  the  sickness  or  death  of 
the  employee,  or  by  his  discharge,  whether  for  cause  or  otherwise, 
he  is  entitled  to  recover  the  cootraet  wa«es  for  the  time  served, 
less  any  damages  resulting  from  his  own  misconduct;*  the 
same  rule  applies  where  the  contract  is  severable,*  and  an  or- 
dinary employment  in  which  periodic  payments  are  contem- 
plated has  been  held  to  be  of  this  class.*   In  any  case,  wages 
paid  before  the  breach  cannot  be  recovered  by  the  employer,* 
nor  can  he  refuse  to  pay  a  note  given  before  the  breach  in  pay- 
ment of  wages.' 

SmmoN  9.  Statutory  Prorinoru  for  Enforcing  Contracts.  — 
Not  bemg  enforceable  in  equity,  and  entailing  only  liabiUty  in 
damages  for  its  violation,  the  refusal  or  failure  by  an  employee 
to  fulfill  the  terms  of  his  contract  is  not  a  criminal  act,  apart 
from  statutory  enactment,  nor  is  it  a  tort.«  A  number  of  states, 
chiefly  Southern,  have  laws  relating  to  the  enforcement  of  the 
labor  contract,  and  providing  for  penalties  for  its  violation. 
The  Louisiuia  dvU  code,  art  2747,  states  that  "A  man  is  at 

•  Britton  t.  Turner,  6  N.H.  481. 

nn  fl^T,?  ^       1*2:  AAer  t.  Tomliiaoii.  22  Ky.  L.  Bn».  MM. 

«)S.W.  714;  Duncan  V.  Bakar,  21  Kmm.  9B. 

•  Hildebrand  t.  Art  Co.,  tupra. 

«TichMior    Bruekhdmer.  40  Miae.  194  (N.Y.) ;  .White  t.  Atkiu,  8  Curfi. 
870  (Man.). 

•  Watah  «.  New  York  A  Ky.  Co.,  86  N.Y.  Son*.  83. 

•  Winn  t.  Southgkte,  17  Vt.  388. 

»  Thorpe  ».  White,  !3  Johns.  63  (N.Y.). 

•  Comerford  t.  Street  By.  Co.,  164  Mue.  13. 41  N.E.  69. 


THB  CONTRACT  OF  IMFLOTMINT 


17 


liberty  to  dismiH  a  hind  aemunt  ftttaohed  to  lus  peraon  or 
family,  witlKHitaangniiig  any  reason  for  aodoinc.  Tlieservaot 
is  also  free  to  depart  witlioat  assigning  any  cause";  wliicli  is 
but  a  statement  of  the  common  law.'  The  next  article  provides, 
however,  that  "  Laborers,  who  hire  themselves  out  to  serve  on 
plantations  or  to  work  in  manufactories,  have  not  the  right  of 
leaving  the  person  who  hired  them,  nor  can  they  be  sent  away 
by  the  proprietor,  until  the  time  has  expired  during  which  they 
had  agreed  to  s«rve,  unless  good  and  just  cause  can  be  assigned." 
In  case  of  an  unjustifiable  breach,  forfeiture  of  all  wages  earned 
during  the  expired  portion  of  his  service  is  prescribed,  if  the  act 
is  that  of  the  employee ;  or  the  forfeiture  of  the  full  wages  for 
the  term,  if  the  act  is  that  of  the  employer.  If  the  employee  is 
discharged  for  good  cause,  he  is  entitled  to  recover  wages  for 
the  time  served.'  The  law  of  Arkansas  is  practically  the  same 
as  tiiat  of  Louisiana.' 

A  form  r*  leipslation  that  has  arisen  in  large  part,  no  doubt, 
from  loc&  omic  conditions  of  labor  is  one  that  has  regard  to 
contracts  employment  where  advances  of  money  or  supplies 
have  been  secured  with  fraudulent  intent.  These  laws  apply 
to  goods  advanced  during  the  continuance  of  the  contract  as 
well  as  to  those  obtained  at  the  time  it  is  made.  Thus  in  Ala- 
bama abandonment  of  the  contract  without  repajrment  of  such 
advances  is  punishable  criminally  as  for  the  perpetration  of  a 
fraud  by  means  of  promises  not  intended  to  be  kept.*  An  in- 
tent to  defraud  must  be  shown,  a  mere  breach  of  the  contract 

« Boyer  t.  W.  V.  Tel.  Co.,  IM  Fed.  246. 
»  Nolan  V.  Danks,  1  Robinson  332  (La.). 

•  Dig.  1904.  aeos.  6027,  £028.   See  Latham  t.  Barwiok.  87  Ark.  328.  113 

B.W.  646. 

«Codeof  1907.Me.S84S. 

C 


18 


LAW  OF  TBI  IMPLOTMBNT  OF  LABOR 


not  being  a  crime ; '  and  it  is  insisted  that  "the  criminal  feature 
of  the  statute  consists  in  the  entering  into  a  contract  with  the 
intent  to  injure  or  defraud  the  employer,  and  the  refusal  of  the 
employee  to  perform  the  contract,  with  a  like  intent.*  The 
statute  provided  that  refusal  <Nr  failure  without  just  eause  to 
perform  the  act  or  render  tHe  service  agreed  up(w,  or  to  refimd 
the  money  or  value  of  the  property  advanoed,  ma  prima  faoie 
evidence  of  fraudulent  intent ;  and  this,  with  the  other  provi> 
sions  of  the  statute,  was  held  by  the  supreme  court  of  the  state 
lo  be  constitutional.'  On  appeal  to  the  Supreme  Court  of  the 
United  States,  however,  this  provision  of  the  law  was  held  to  be 
repugnant  to  the  provisions  of  the  thirteenth  amendment  to  the 
Constitution  of  the  United  States,  prohibiting  involuntary  ser- 
vitude, and  to  those  of  the  peonage  laws,*  inasmuch  as  they 
deprived  the  defendant  of  his  presumption  ot  Innocence,  and 
exposed  him  to  conviction  for  fraud  upon  evidence  only  of  a 
breach  of  contract  and  a  failure  to  repay  advances.* 

>  Ex  parte  Riley,  04  Ala.  82, 10  So.  628 ;  BaUey  «.  SUte.  158  Ala.  18, 48  So.  498. 

•  BaUey  w.  State,  rapni;  citiiig  Doney  t.  State.  Ill  Ala.  40. 90  So.  829  and 
Mcintosh  «.  State,  117  Ala.  128,  23  So.  668. 

•  SUte  D.  Vann,  150  Ala.  66,  43  So.  357 ;  Bailey  ».  State,  158  Ala.  18,  48  So. 
498 ;  same  case,  161  Ala.  78,  49  So.  886.  *  U.  S.  R.  S..  sees.  1990.  SS26. 

•  Ba  ey  f .  Alabama.  219  U.S.  219, 31  Sup.  Ct.  146.  "  The  fact  that  the  labor 
debtor  contracted  to  perform  the  labor  wUeh  ia  aought  to  be  compelled  does  not 
withdraw  the  attempted  enforcement  from  the  condemnation  of  the  statute 
[prohibiting  peonage].  The  full  intent  of  the  constitutional  provision  could  be 
defeated  with  obvioua  faeiUty  if.  tluoath  the  guise  of  eontracto  under  which 
advances  had  been  made,  debtors  could  be  held  to  compulsory  service.  It  is 
the  compulsion  of  the  service  which  the  statute  inhibits,  for  when  that  occurs, 
the  eraditicm  of  awvitade  ia  created,  which  would  be  not  lese  involuntary  beeaoae 
of  the  original  agree)!n<>nt  to  work  out  the  indebtedness.  The  contract  exposes 
the  debtor  to  liability  for  the  loss  due  to  the  breach,  but  not  to  enforced  labor. 
The  act  of  Cor  —ess  deprives  of  effect  all  legislative  measures  of  any  state  through 
which,  direcUy  or  indirecUy,  the  prohibited  thing,  to  wit,  compulsory  service  to 
aecure  the  payment  <rf  a  debt,  may  be  ertabliahed  or  maintained." 


TBI  CONTRACT  07  BMPLOTlfINT  19 


Other  jurisdictions  having  laws  of  this  tenor  are  Arkansas,* 
Florida,*  Georgia,*  Louisiana,*  Michigan,*  Minnesota,*  New 
Mexico,'  North  Dakota,'  and  South  Carolina.*  The  laws  of 
Michigan,  Mfamewta,  and  North  DakoU  seem  to  contemplate 

primarily  the  fraudulent  procurement  of  transportation,  though 
they  include  other  forms  of  advances,  and  contain  the  provision 

making  failure  to  repay  prima  facie  evidence  of  fraud,  thus 
bringing  these  laws  within  the  strictures  of  the  opinion  of  the 
Supreme  Court  in  the  Bailey  Case.    The  charge  had  already 
been  made  against  some  of  the  laws  of  this  class  that  they  violate 
the  national  law  prohibitmg  peonage,  which  is  defined  as  a 
"status  or  condition  of  compulsory  service,  based  upon  the  in- 
debtedness of  the  peon  to  the  master."  »  The  statute  under 
discussion  when  this  definition  was  given  was  an  eariier  one  of 
Florida,  and  it  was  said  by  the  Supreme  Court  of  the  United 
States  that  that  which  was  contemplated  by  th^  law  was  com- 
pulsory service  to  secure  the  payment  of  a  debt.   This  case  was 
referred  to  in  the  course  of  an  opinion  in  which  a  law  of  South 
Carolina"  was  declared  unconstitutional  by  a  Federal  court  as 
bring  in  conflict  with  the  thirteenth  and  fourteenth  amend- 
ments of  the  Constitution  of  the  United  States,  and  laws  made 
in  pursuance  thereof."  This  statute  was  also  held  unconstitu- 
tional by  the  supreme  court  of  the  state  of  South  Carolina  in  a 
case "  'Ti  which  the  opinion  was  very  fuU,  and  in  which  a 

» Act.  of  1907.  No.  271.     «  Act.  of  1906.  No.  54.       »  Act.  of  1905.  ch.  3^. 
Act.  of  1907.  ch.  6878.    •  Act.  of  1903.  No.  106.     •  Act.  of  1907,  ch.  208 
•Act.  of  1903.  p.  90.        .  R.L.  1905.  sec.  5187.       •  Aol.  ol  1908,  No.  494. 
»  Clyatt U.S..  197  U.S.  207,  25  Sup.  Ct.  429. 
"  ^rim.  Code.  mc.  367,  u  amended  by  aet.  of  1904.  No.  243. 
«»  Ex  parte  Drayton.  153  Fed.  986. 

»  Ex  parte  HoUman.  79  8.C.  9.  60  8.E.  19.   The  diMentiDg  opinkm  pnmaU 
tM  eeoBonie  reann.  foi   wa  of  this  daw. 


20 


LAW  OF  TBI  mCFLOTli INT  OF  LABOR 


l«ogthy  disseDting  opinion  was  a1k>  written.  In  dwlwing  this 
law  unconstitutionml,  the  court  rcvened  the  position  it  had  held 
in  eariier  oases,*  taking  the  ground  that  the  statute  violated 
tlie  right  of  citizens  to  be  exempt  from  imprisonment  for  debt 
except  in  cases  of  fraud,  as  provided  in  the  state  constitution ; 
further,  that  it  violated  the  thirteenth  amendment  of  the  Con- 
stitution of  the  United  States,  as  its  enforcement  would  lead  to 
peonage  or  involuntary  servitude;  and  the  fourteenth  amend- 
ment likewise,  since  it  did  not  bear  equally  on  the  landlwd  and 
the  laborer.  The  present  Uw  of  Smith  Carolina  was  enaeted  by 
the  legislaturo  of  1908  (Act  No.  494),  and  is  «ctended  to  belude 
personal  service  of  every  kind,  applying  to  employers  who  fail 
or  refuse  to  receive  and  compensate  personal  service  after  con- 
tracting therefor,  as  well  as  to  employees  who  fail  or  refuse  to 
render  such  service.  Fraud  or  malicious  intent  to  injure  is 
essential  to  the  offense,  the  failure  without  sufficient  cause  to 
carry  out  the  contract,  to  the  injury  of  the  other  party,  being 
prima  facie  evidence  of  fraud  and  malice.  The  law  covers  cases 
where  advances  are  not  received  or  promised,  as  well  as  others, 
though  contracts  based  on  debts  mcurred  prior  to  the  commence- 
ment of  service  thereunder  are  expressly  declared  null  and  void. 

In  laws  where  the  repayment  of  advances  is  considered,  it  is 
contended  in  their  favor  that  it  is  not  against  the  laborer's 
breach  of  contract  that  the  penalty  lies,  but  against  a  mis- 
demeanor, "as  if  he  had  stolen"  the  advanced  property  (Ala- 
bama) ;  "he  shall  be  deemed  a  common  cheat  and  swindler" 
(Georgia) ;  "shall  be  guilty  of  a  misdemeanor,"  and  be  pun- 
ished by  fine  or  imprisonment  (Michigan  and  Minnesota),  etc. 

*  State  Williama,  32  B.C.  124, 10  S.E.  876 ;  State  *.  Cbapmui.  56  S.C.  420, 
34  S.E.  961 :  State  t.  Earteriin.  61  S.C.  71,  S9  8.E.  2S0. 


TBI  CONTRACT  Of  IMPLOTMBNT  21 

It  is  claimed  that  the  state  has  the  right  to  penalize  such  breach, 
after  the  reudpt  of  advanoes,  as  a  punishment  of  fraud,  and  for 
the  purpow  of  nprewiiig  fraoduleat  praotioea;  and  the  laws  have 
received  judicial  support  on  this  ground.*  The  whole  list  of 
such  laws  apparently  falls  under  the  charge  that  was  made 
against  the  Florida  statute  in  the  Clyatt  case,  above,  —  that 
their  purpose  is  the  compulsory  payment  of  a  debt,  in  which 
view  they  would  come  under  the  strictures  of  the  same  court 
set  forth  in  another  case,  where  it  was  said  that  a  "mere  statute 
to  compel  the  payment  of  indebtedness  does  not  come  within 
the  scope  of  police  regulations." «   Their  effect  is,  at  least, 
'to  expose  the  weak  and  unintelligent  to  oppression  and  in- 
justice  at  the  hands  of  the  powerful  and  unscrupulous,  —  to 
offer  easy  possibilities  of  misuse  for  the  collection  of  debts  and 
the  enforcement  of  civil  contracts  without  regard  to  the  inten- 
tion of  the  defendant';'  and  they  cannot  be  looked  upon  as 
valid,  in  view  of  the  pronouncement  in  the  Bailey  case.* 

As  a  means  to  the  same  end  of  enforcing  the  performance  of  the 
labor  contract,  the  Alabama  legislature  enacted  a  1  w » by  which 
an  employee  under  written  contract  for  a  specified  time  to  work 
for  another  or  to  lease  Unds  was  prohibited  from  making  a 
second  contract  without  the  consent  of  the  first  employer  and 
without  sufficient  cause,  to  be  adjudged  by  court,  unless  he 
should  give  notice  of  the  preexisting  contract.  The  punishment 
was  a  fine  or  penal  service.   This  act  was  declared  unconstitu- 

'  Vanoe    Stete.  128  C  601. 57  8.E.  889;  State  ».  Murray,  116  La.  686. 40 

So*  030* 

*  Gulf,  etc.,  R.  Co.  V.  Ellia,  165  U.8. 157, 17,  Sup.  Ct  257. 
» Patterson  ».  State,  1  Ga.  App.  782,  58  8.E.  284. 

*  BaSny  V.  Alabama,  tupra. 

*  Acta  of  1900-1901.  No.  48$. 


22 


LAW  OF  THE  BMPLOTMBNT  OF  LABOR 


tional,  first  by  a  Federal  court/  and  later  by  the  supreme 
court  of  the  state.'  In  the  opinion  of  the  court  first  named  it 
was  held  that  the  act  was  a  coercive  weapon  by  which  the 
employer  would  seek  to  compel  the  payment  of  a  debt  or  the 
performance  of  a  contract,  in  cases  where  only  a  suit  for 
damages  would  lie ;  while  the  state  couit  condemned  the  law 
because  of  the  restrictions  it  undertook  to  place  on  the  right 
to  make  contracts  of  employment. 

The  state  of  Mismssippi  has  a  statute  *  of  like  tenor  with 
the  above,  enacted  in  1900,  which  does  not  appear  to  have  yet 
received  consideration  at  the  hands  of  the  higher  courts,  but  is 
doubtless  likewise  invalid. 

Employees  engaged  in  the  operation  of  railroad  trains,  and  in 
Connecticut  of  street  cars,  who  abandon  the  train  or  car  at 
another  point  than  its  scheduled  destination,  are  declared 
guilty  of  a  misdemeanor  in  a  number  of  states.*  In  some  cases 
the  law  applies  only  where  there  is  a  combination  to  strike,  and 
in  some  to  locomotive  engineers  only.  A  more  general  statute 
applies  to  any  person  violating  his  contract  when  he  knows  or 
has  reason  to  believe  that  the  probable  consequences  of  his 
breach  will  be  the  endangering  of  life,  the  causing  of  bodily 
injury,  or  the  exposure  of  valuable  property  to  destruction.' 
A  law  '  ^  another  state  provides  that  an  employee  of  any  sort  on 
a  steamboat  who  abandons  the  boat  before  the  termination  of 
his  contract  or  who  refuses  to  perform  the  work  for  which  he 

>  Peonage  Cases,  123  Fed.  671.  •  Toney  •.  State.  141  Ala.  130, 37  So.  332. 
•Code  of  1906,  sec.  1147. 

«Conn.,  G.8.  sec.  1293;  Del..  R.  Code,  p.  928;  111.,  R.S.  ch.  114,  sec.  108; 
Kans..  G.S.  sec.  2374;  Mc,  R.S.  eh.  124,  sec.  6;  N.J.,  Acta  1903.  ch.  267, 
sec.  62 ;  Pa.,  B.  P.  Dig.  p.  633. 

*  N.Y..  C.L.  eh.  40.  tMS.  1910 ;  Waah..  Aeto  1800.  eh.  340,  aee.  381. 


THE  CONTRACT  OF  EMPLOTMENT  23 


contracted  shall  not  only  forfeit  all  wages  due,  but  shall  also  be 
liable  for  all  damages  caused  by  his  act.' 

Practically  all  the  states  have  la^.  s  relating  to  apprentices 
and  the  regulation  and  enforce  tjent  of  coniiftits  with  them. 
These  laws  generally  prescribe  tl  ;  Ciirm  of  iadrnture,  the  duties 
of  the  master  as  to  training,  educt»iio.i,  the  payment  of  the 
stipulated  amount  on  the  expiration  of  the  term.  The  appren- 
tice is  requu^d  to  complete  his  term,  and  enticing  or  harboring 
hun  or  otherwise  interfering  with  the  relation  of  apprenticeship 
is  forbidden.  These  laws  are  practically  obsolete  at  the  present 
time,  contracts  between  employers  and  unskilled  men  or  boys 
learning  trades  being  for  the  most  part  governed  by  the  rules 
of  law  generally  applicable  to  labor  contracts. 

Section  10.  Seamen.  —  A  class  of  employees  that  stands  on 
a  different  footing  from  any  other  is  that  of  seamen,  with  ref- 
erence to  whom  it  has  been  held  that  enforced  contracts  are  per- 
mitted, the  law  as  to  involuntary  servitude  not  being  applicable.* 
Many  distinctive,  legally  recognized  customs  apply  to  them,  as 
well  as  a  special  code  of  statutes,  chiefly  Federal,'  since  the  con- 
trol of  seamen  belongs  to  Congress,  being  recognized  as  within 
the  commerce  clause  of  the  Constitution.*  These  laws  and 
customs  relate  to  the  nature  of  the  contract,  the  term  of  service, 
the  payment,  assignment,  etc.,  of  wages,  advance  payments, 
and  credits,  the  regulation  of  sailors'  lodging  houses,  of  shipping 
masters,  quarters  on  board  ship,  rations,  and  raany  other  details. 

The  reason  for  these  differences,  which  take  seamen  outside 
the  control  of  the  general  laws  affecting  labor,  is  grounded  in 

>  U.,  R.L.  MO.  945. 

»  Robertson  r.  Baldwin,  165  U.S.  275,  17  Sup.  Ct.  326. 

•  R.S.,  sees.  4501  to  4612,  Comp.  Stat.  1901.  pp.  3061  to  3126. 

« FMtmoB  f .  The  Eudm,  180  U.8. 169.  23  Sup.  Ct.  821. 


24 


LAW  OF  THE  EMPLOYMENT  OF  LABOR 


ancient  custom,  and  is  defended  on  the  view  that  the  business 
of  navigation  requires  some  guaranties,  beyond  the  ordinary 
civil  remedies  upon  contracts,  to  e£Fect  their  enforcement ;  and 
further,  because  of  the  manner  of  their  life  by  reason  of  which 
seamen  are  peculiarly  exposed  and  subjected  to  the  will  and  ca- 
pr'ce  of  the  ship's  officers  on  the  one  hand,  and  to  designing  and 
corrupt  traders,  etc.,  on  land  on  the  other.  "Indec^'i,  seamen 
are  treated  .by  Congress,  as  well  as  by  the  Parliament  of  Great 
Britain,  as  deficient  in  that  full  and  intelligent  responsibility 
for  their  acts  which  is  accredited  to  ordinary  adults,  and  as 
needing  the  protection  of  the  law  in  the  same  sense  in  which 
minors  and  wards  are  entitled  to  the  protection  of  their  parents 
and  guardians."  ' 

On  account  of  these  differences,  and  their  limited  field  of  ap- 
plication, the  conditions  of  employment  of  seamen  will  not  be 
further  considered. 

Section  11.  Breach  of  Contract  hy  the  Employer.  —  As  already 
stated,  a  contract  of  employment  is  enforceable  against  the 
employer  to  the  extent  that  damages  may  be  recovered  for  the 
breach  thereof,  and  an  employee  under  contract  is  entitled  to 
recover  the  wages  agreed  upon  where  the  employer  refuses  to 
accept  services  in  accordance  with  the  terms  of  the  contract.' 
If,  however,  tho  employee  fails  to  show  that  he  was  ready  and 
willing  t  render  the  services,  or  puts  himself  in  a  position  where 
performance  is  not  possible,  he  can  enforce  no  claim ; '  but 
tender  of  service  after  notice  of  discharge  is  not  necessary.* 

>  Robertaon  «.  Baldwin,  tupra.         >  Costigan  e.  R.  Co.,  2  Den.  609  (N.Y.). 

•  Pdk  •.  Daly,  4  Daly  411  (N.Y.) ;  CtX&a»  *.  Haidton,  05  Mich.  220, 31  N.W. 
843. 

*  Bacon  «.  New  Home  S.'M.  Co.,  13  N.Y.  Supp.  359 ;  McMullen  v.  Dickinson 
Co..  63  Mian.  408,65  N.W.  861. 


THE  CONTRACT  OP  EMPLOYMENT  25 


Of  necessity,  no  question  can  arise  as  to  the  breach  of  a  con- 
tract terminable  at  will.  This  rule  has  bfeen  carried  so  far  as 
to  hold  that  an  employee  who  had  left  his  phice  with  his  former 
employer  and  was  proceeding  xmdc  an  agreement  with  a  new 
employer  and  in  compliance  with  his  instructions,  could  recover 
no  damages  for  the  repudiation  of  the  contract  by  the  latter 
before  the  performance  of  any  part  of  the  contract,  in  the  ab- 
sence of  proof  of  a  stipulated  term  of  employment.'  The  better 
reason  would  seem  to  support  the  position  that  a  breach  without 
giving  the  employee  a  chance  to  begin  work  gives  him  a  right 
to  at  least  nominal  damages;  since,  even  though  the  contract 
was  for  no  definite  time,  it  was  for  some  time,  and  the  actual 
performance  of  and  payment  for  labor  in  some  amount  were 
contemplated.* 

Where  an  employer  breaks  a  contract  of  hiring  for  a  specified 
time,  the  employee  may  wait  until  the  expiration  the  contract 
period  and  recover  the  amount  of  wages  he  would  have  earned 
but  for  his  wrongfij  discharfu,  less  what  he  earned  or  could 
have  earned  by  employment  elsewhere.'  It  is  held  by  the  weight 
of  authority  that  the  burden  of  showing  that  the  plaintiff  was 
able  to  procure  other  employment  rests  on  the  defendant  em- 
ployer;* though  the  question  may  be  referred  to  the  jury  to 
decide  from  the  circumstances  as  to  the  reasonable  prospect  of 

>  Savannah,  etc.,  P..  Co. ».  Wfllett.  43  Fla.  311.  31  So.  246.   See  also  Merrill 
t.  W.  U.  Tel.  Co.,  78  Me.  97.  2  AU..  847. 

»  Cronemillar  •.  Milling  Co..  134  Wis.  248. 1 14  N.W.  432 ;  Burtis  r.  Thompson 
42  N.Y.  246 ;  Utter  r.  Chapman.  38  Cal.  659. 

•  Winkler  v.  Racine  Wagon,  etc.,  Co.,  99  Wia.  184.  74  N.W.  793 ;  Efron  r 
Ca^rton,  85  8.  W.  424  (Te»w  dr.  App.)  ;  Pierce  t.  R.  Co.,  173  U.S.  1,  19  Pup. 
Ct.  SaS;  Cutter  ».  Gillette,  163  Maaa.  95.  39  N.E.  1010. 

*  MsthMiua  ».  R.  Co..  96  Fed.  792 ;  Wilkinson  «.  Black,  80  Ala.  332 ;  Hamilton 
t.  Lore,  43        873  (lad.)  {  Maynard  ».  CorKt  Co.,  200  Mass.  1,  85  N.E.  877. 


26 


LAW  OP  THE  EMPLOYMENT  OP  LABOR 


the  discharged  employee's  procuring  employment  during  the 
\mexpired  term  of  his  contract.'  In  some  states  the  burden  is 
shifted  to  the  plaintiflf.*  While  it  is  the  plaintiff's  duty  to  use 
reasonable  efforts  to  avoid  loss  by  securing  employment,  he  is 
not  bound  to  accept  new  employment  of  a  nature  essentially 
different  from  that  for  which  he  was  originally  employed,*  even 
from  his  former  employer.* 

Instead  of  suing  for  the  wages  that  would  have  been  earned 
but  for  the  breach  of  the  contract,  the  remedy  prescribed  in  some 
jurisdictions  is  an  action  for  the  damages  caused  by  the  breach.' 
This  suit  may  be  brought  either  immediately  or  at  the  expira- 
tion of  the  term.'  The  measure  of  damages  recoverable  will 
usually  be  the  contract  price  for  the  labor.''  In  jurisdictions 
where  suits  for  wages  are  allowed,  the  employee  may  choose 
which  of  the  two  rraaedies  he  will  pursue.'  The  rule  in  Louis- 
iana is  to  the  effect  that  the  right  to  recover  wages  for  the  un- 
expired term  of  the  contract  becomes  vested  at  once  on  its 
unwarranted  breach  by  the  employer,  and  is  not  affected  either 
by  the  acceptance  of  other  employment  or  by  a  refusal  to  return 

>  Moore  v.  Central  Foundry  Co.,  68  N.J.L.  14,  52  Atl.  292. 
»  John  C.  Lewis  Co.  ».  Scott,  95  Ky.  484,  26  S.W.  192 ;  Hunt  r  Crane,  33 
MiM.  669,  69  Am.  Dec.  381. 

•  Leatherberry  i.  OdeU,  7  Fed.  641 ;  Fucfaa  t.  Koemn.  107  N.Y.  529, 14  N.E. 
445. 

«  De  Loraz  r.  McDowell,  68  Hun.  170,  22  N.Y.  S.  606;  Jacluon  ».  School 
District,  111  Iowa  20,  77  N.W.  860. 

•  Weed  ».  Burt,  78  N.Y.  191 ;  Stone  ».  Bancroft,  112  Cal.  653, 44  Pac.  1069. 

•  Hamilton  v.  Love,  lupra;  Olmsted  «.  Bach,  78  Md.  132, 27  Atl.  601 ;  James 
•.  Allen  Co.,  44  Ohio  St.  226,  6  N.E.  246. 

'  Lambert  e.  HartriMmw,  6S  Mo.  MO;  Fuller  v.  Little,  61  III.  21 ;  Hamilton 
f.  Love,  tupra. 

•Fowler  r.  Armour,  24  Ala.  194;  MuIIaly  ».  Austin,  9/  Mass.  30;  Tyler 
Cotton  PreH  Co.  i.  Chmralier.  86  Qa.  404;  McLean  t.  Pub.  Co.  (N.D.).  120 
N.W.  03. 


THE  CONTRACT  OF  EMPLOYMENT  27 


to  work  under  the  original  contract;^  but  this  doctrine  is 
grounded  on  the  peculiar  statute  of  the  state,*  and  is  not  in  line 
with  the  commonly  accepted  rules  of  law  elsewhere. 

Where  an  employee  had  an  optiou  on  permanent  employment 
by  reason  of  a  contract  entered  into  in  consideration  of  for- 
bearing to  sue  for  damages  on  account  of  an  injury,  and  he  is 
discharged  without  cause,  he  may  sue  for  loss  of  earnings  since 
his  discharge,  and  for  such  earnings  as  would  have  been  re- 
ceived in  the  future,  less  probable  earnings  in  other  employment.' 

SscnoN  12.  Groundt  for  Discharge.  —  If  the  employer  can 
successfully  defend  his  course  of  action  in  discharging  an  em- 
ployee under  contract,  no  damages  will  be  allowed,  and,  apart 
from  special  provisions  in  the  contract,  the  question  whether 
the  discharge  was  warranted  or  not  is  one  for  the  jury.*  A 
workman  of  adult  age  undertaking  to  do  a  piece  of  work  is  pre- 
sumed to  be  competent,  and  incompetency  is  a  suflBcient  ground 
for  discharge,  whether  he  made  representations  as  to  his  com- 
petency,* or  whether  it  was  merely  presumed.*  The  word 
"  competency,"  as  used  in  this  coimection,  is  not  to  be  taken  in  an 
absolute  sense,  however,  and  imports  nothing  more  than  reason- 
able skillJ  Where  an  employer  alleges  incompetence  as  the 
ground  for  breaking  a  contract,  the  burden  of  proof  is  on  him.' 

>  Curtia  V.  A.  Lehman  Co.,  116  La.  40, 38  So.  887 ;  Camp  v.  Baldwin-Melville 
Co.,  123  La.  257,  48  So.  927.  i  La.,  Civ.  Code,  art.  2749. 

•  Rhoades  r.  Chesapeake  A  O.R.  Co.,  49  W.  Va.  494,  39  S.E.  209. 

•  Lippus  «.  Watch  Co.,  7  N.  Y.  Supp.  478 ;  Echols  ».  Fleming,  68  Ga.  156. 

•  Moimn  Amde  Soap  Co.  ».  Clark,  72  lU.  App.  656 ;  Ansteo  v.  Ober,  26  Mo. 
666. 

•  Lyon  e.  Pollard,  20  Wall.  403  (U.S.)  ;  Keedy  e.  Long,  71  Md.  385, 18  AU.  704. 
» Crescent  Horseshoe  Co.  r.  Eynon,  95  Va.  161, 27  S.E.  935 ;  Walton  ».  God- 
win, 68  Hun  87,  11  N.Y.  Supp.  391. 

•  Mezalbaum  t.  Limberger,  78  Ga.  43,  3  S.E.  267 ;  Franklin  *.  Lumber  Co 
M  W.  Vs.  164,  66  S.E.  225. 


28 


LAW  OF  THE  EMPLOYMENT  OP  LABOR 


An  employee  must,  however,  perform  the  duties  for  which  he 
contracted  with  a  degree  of  skill  suited  to  the  terms  of  his  con- 
tract for  the  undertaking  in  hand,  and  he  cannot,  if  discharged 
for  incompetency,  plead  performance  with  ordinary  skill.* 

Where  a  contract  is  for  a  definite  term,  and  a  provision  is 
made  that  the  service  shall  be  satisfactory  to  the  employer,  the 
decision  of  the  latter  is  final  if  he  is  in  good  faith  dissatisfied ;  * 
though  in  some  cases  it  is  held  that  the  employer  is  the  sole 
judge,  and  that  no  question  of  good  faith  can  be  raised.*  This 
is  opposed  by  the  view  held  in  a  case  involving  the  breach  of  a 
contract  for  permanent  employment,  conditioned  on  the  em- 
ployee giving  satisfaction  to  his  foreman  or  superintendent ;  it 
was  here  said  that  the  burden  of  proof  was  on  the  employer  to 
show  good  cause  for  the  discharge,  the  appellate  court  refusing 
to  set  adde  a  verdict  of  the  trial  court  in  the  discharged  em- 
ployee's favor.*  If  the  dissatisfaction  is  genuine,  it  is  not 
material  that  it  is  not  well  founded;*  nor  is  the  employer 
restricted,  in  his  defense  to  an  action,  to  the  cause  originally 
assigned  as  the  reason  foe  the  discharge,  but  may  adduce  other 
reasons,*  even  if  they  were  not  known  to  him  at  the  time  of  the 
discharge.' 

One  state  undertakes  to  regulate  discharges  by  providing  that 

>  Hatton  9.  Mountford,  105  Va.  06,  S2  S.E.  847. 

•  Koehler  v.  Buhl.  94  Mich.  496,  54  N.W.  157 ;  Frary  v.  Rubber  Co.,  52  Minn. 
264,  53  N.W.  1156 ;  Mackeniie  t.  Minis,  132  Ga.  323,  63  S.E.  900. 

•  Allen  t.  CompreM  Co.,  101  Ala.  674, 14  So.  362;  Crawford  ».  Pub.  Co.  163 
N.Y.  404,  67  N.E.  616. 

«  Rhoadea  v.  Chesapeake  A  O.R.  Co.,  49  W.  Va.  494,  39  S.E.  209. 

*  Mackenzie  e.  Minis,  tupra. 

*  Corgan  ».  Coal  Co.,  218  Pa.  386,  67  Atl.  655. 

»  Von  Heyne  t.  Tompkins,  89  Minn.  77,  93  N.W.  901 ;  Loos  ».  Brewing  Co 
146  Wia.  1,  138  N.W.  645.   Sm  Wood'a  "  Matter  and  Swvant,"  2d  ed.,  mo! 
121. 


THE  CONTRACT  OF  EMPLOTMENT  20 


no  employee  between  the  ages  of  eighteen  and  sixty  shall  be 
discharged  solely  on  account  of  age.^ 

In  a  general  contract  of  hiring,  without  reference  to  the  term, 
an  agreement  not  to  suspend  or  discharge  without  just  and  suf- 
ficient cause  is  not  a  restriction  against  discharge  at  the  em- 
ployer's option ;  *  but  if  the  employment  is  for  a  term,  the  mere 
fact  of  general  misconduct  on  the  part  of  the  employee  is  not 
sufficient  ground  for  discharge  unless  it  is  made  to  appear  that 
it  is  misconduct  in  connection  with  his  employment  or  is  of  such 
a  nature  as  to  prejudice  his  employer's  interests.*  Willful 
disobedience  of  reasonable  and  lawful  orders,*  or  other  viola- 
tion of  the  implied  terms  of  the  contract  (sec.l),  as  well  as 
violation  of  its  express  terms,  will,  if  proved,  generally  be  a 
sufficient  defense  for  an  employer  in  an  action  for  damages  for  a 
breach  of  the  contract.  If  it  can  be  shown  that  the  disobedi- 
ence was  not  of  a  nature  to  injuriously  affect  his  employer,  it  has 
been  held  that  the  employee  may  still  recover  damages,  as  he  is 
entitled  to  some  measure  of  self-direction,'  especially  if  skilled.* 

It  will  be  regarded  as  a  breach  of  the  contract  by  the  employer 
if  he  violates  its  terms,  express  or  implied,  as  by  requiring  other 
service  than  that  contracted  for ; '  thou{^  it  has  been  said  that 
this  alone  will  not  amount  to  a  breach,  so  long  as  the  employee 
is  permitted  to  perform  the  work  for  which  he  was  hired ; '  nor, 

•  Colo.,  Supp.  see.  2801o2. 

»  St.  Louis,  I.  M.  4  S.  R.  Co.  «.  Mathews,  64  Ark.  398,  42  8.W.  902. 

•  Child  r.  Boyd,  etc.,  Mfg.  Co.,  176  Mass.  493,  56  N.E.  608. 

•  Forsyth  v.  McKinney,  66  Hun  1,  8  N.Y.  Supp.  6P1. 

•Shaver  r.  Ingham,  68  Mioh.  649,  26  N.W.  102;  Hamflton  «.  Love. 

43  N.E.  873  (Ind.). 

•  Park  V.  Bushnell,  60  Fed.  583,  9  C.CJL  188. 
'  Baron  i .  Placide,  7  La.  Ann.  229. 

•  Koi^ta  f.  Powdl.  66  Wk.  671. 14  N.W.  881. 


3 

r 
11 


30 


LAW  OF  THE  EMPLOYMENT  OF  LABOR 


I'  I 


ii 


on  the  other  hand,  can  the  employee's  refusal  to  do  work  out- 
side the  scope  of  his  employment  be  made  a  ground  for  dis- 
charge.'  Where  tho  order  to  do  the  new  work  is  coupled  with 
a  refusal  to  permit  the  performance  of  the  work  contracted  for, 
there  is  a  breach  for  which  an  action  will  lie ;  ^  so  also  where  the 
employer  restricts  the  employee's  rights  under  the  contract,*  or 
does  other  acts  prejudicial  to  the  employee's  safety,  morals, 
or  reputation.   The  modification  of  the  conditions  of  employ- 
ment is  in  effect  making  a  new  contract,  and  will  involve  the 
necessity  of  proving  a  sufficient  consideration  to  support  it.« 
In  case  of  a  contract  terminable  at  will,  continuance  in  em- 
ployment with  knowledge  of  the  modification  i?  considered  an 
acceptance  of  the  new  terms.'    Neither  party  can  recover 
damages  for  the  breach  of  a  contract  which  contravenes  pubUc 
policy. 

Section  13.  Other  Methods  of  Dtssobnng  (he  CorUrad  Rda- 
Hon.  —  Besides  abandonment  of  the  contract  by  the  employee 
or  its  breach  by  the  employer,  ordinary  contracts  of  employ- 
ment may  be  terminated,  without  entailing  liability  on  either 
party  beyond  the  payment  of  wages  earned  up  to  the  time  of 
dissolution,  by  mutual  consent;  •  by  the  expiration  of  the  con- 
tract period,  after  which  an  employee  seeking  to  recover  wages 
for  services  rendered  must  show  that  the  contract  was  renewed 
or  extended,  either  expressly  or  by  hnplication; '  by  the  death 

'  Loos  t.  Brewing  Co.,  ntpra;  Kotdite  ».  Powell,  aupra. 

•  Cooper  ».  Stronge  A  Warner  Co.,  Ill  Minn.  177,  126  N.W.  Ml :  Mm  • 
MUler.  134  Ala.  347,  32  So.  765. 

»  Baldwin  r.  Marque«e,  9i  Ga.  404,  18  S.E.  309. 

•  Davia  ».  Morgan,  117  Ga.  604,  43  S.E.  732. 

•  Norton  ».  Brookllne,  181  Maaa.  360,  63  N.E.  930. 

•  Patnote  v.  Sanders,  41  Vt.  66,  98  Am.  Pec.  664. 
'  Ewing  V.  Janaon,  67  Ark.  237,  21  S.W.  430. 


THE  CONTRACT  OF  BMFLOTMBNT  31 

or  continued  dcknen  of  the  employee ; »  or  by  the  occurrence 
of  Bom'^  event  for  which  neither  party  is  responsible,  which 
makes  .he  rendering  of  the  service  impossible  or  unreasonable 
and  out  of  consonance  with  the  original  intent  of  the  parUes.' 
The  mere  fact  that  an  undertaking  develops  greater  difficulties 
than  were  contemplated  at  the  time  the  contract  was  entered 
into  will  not  operate  to  dissolve  it,  however,'  but  for  an 
employer  to  refuse  to  accept  services  except  of  a  nature  and 
under  conditions  vioktive  of  the  terms  of  the  contract  is  in 
effect  a  breach,*  for  which  the  employer  is  liable  as  above 
stated.    (Sec.  11.) 

While  the  death  or  sickness  of  an  employee,  preventing  the 
fulfillment  of  a  contract,  operates  to  terminate  it,  the  assump- 
tion being  that  the  contract  is  for  his  personal  services  and  not 
for  those  of  a  substitute  to  be  furnished  by  him  or  his  personal 
representative,'  the  rule  is  not  well  fixed  where  the  case  is  one 
of  the  death  of  the  employer.  Some  authorities  hoH  that  the  re- 
lation is  so  strictiy  a  personal  one  that  the  death  of  the  employer 
effects  a  dissolution,*  while  in  other  cases  a  contraiy  position 
has  been  taken.'  Acceptance  of  services,  either  by  a  surviving 
partner  or  by  the  personal  representative  <rf  the  decedent, 

,  J  ^i'i'''  'L^'"'''''"'  20  Me.  4M.  37  Am,  Dec.  66 ;  Clark    oabert.  26  N.Y. 
283,  84  Am.  Dec.  189. 

*  Jonea  t.  Judd,  4  N.Y.  4U. 

•  Anrfe  ..  Hanna.  22  JH.  429. 74  Am.  Dee.  161 ;  Ca»  •.  Cod  Co.,  25  Pa.  St. 


337, 

„  If         ^'  "« I*- «.  38  So.  887 :  Man    MiUer.  134  Ala.  347. 

»<B  oO.  76&. 

•  O'Connor  v.  Briggs,  182  Mass.  387,  65  N.E.  836. 

•  Lacey  Getman.  1 19  N.Y.  109. 23  N.E.  426 ;  Qrigg,  Swift.  82  Oa.  392, 14 
Am.  St.  Rep.  176 ;  In  re  McPhee'a  Eitate.  Ifi6  CaL  335. 104  Pfeo.  4SS.  Cal.  Civ 
Code,  aee.  1996. 

»Ph(»bai.  Jay.  1111.268;  HiU  t.  Bobeeon.  10  Mlaa.  641. 


32 


LAW  OF  THB  EMPLOTMKNT  OF  LABOR 


would  at  least  entitle  an  empkqree  to  a  quantisn  meniiti*  while 
other  courts  exact  payment  as  provided  fw  the  original  eon* 
tract.*  The  insolvency  of  an  employer  occurring  after  the 
formation  of  a  contract  does  not  put  an  end  thereto,'  nor  does 
his  insanity/  though  as  to  matters  of  the  latter  nature,  it  may  be 
said  that  considerations  that  are  personal  to  individual  em- 
ployers are  of  less  general  importance  with  the  enlargement  of 
the  scope  of  the  operations  of  incorporated  c<»icans  in  the 
conduct  budnesB. 

Either  custom  or  contract  nu^  provide  for  the  resdsricm  of  the 
contract  by  notice.  In  such  cases  the  law  favors  mutuality,  so 
that  employer  and  employee  shall  stand  on  an  equal  footing  as 
to  length  of  notice  required  and  the  forfeitiwe  of  wages,  which 
is  the  usual  penalty  for  the  violation  of  the  agreement.'  A 
usual  custom  is  one  that  req  ;s  notice  for  a  length  of  time 
equal  to  the  interval  between  puy-days.  Whoe  a  rule  of  the 
employer  is  offered  in  evidence,  it  is  for  the  jury  to  decide 
whether  the  employee  was  properiy  instructed  as  to  such  rule 
so  as  to  be  bound  thereby.*  Fai'^ve  to  give  notice  in  accord- 
ance with  the  terms  of  a  contra^  '.s  such  a  violation  thereof  as 
to  prevent  the  recovery  of  wages  earned  before  the  breach ; ' 
though  it  has  been  held  that  the  abandonment  of  a  contract 
without  having  given  the  agreed  notice  does  not  forfeit  the 
wages  earned,  but  only  makes  the  employee  liable  for  any  dam- 

>  Louis  V.  Elfelt,  89  Cal.  547,  26  Pac.  109S. 

*  Tdand    Steveuon,  S9  Ind.  486 ;  Ferin  f .  Sayroi,  6  Watte  *  S.  210  (Pa.), 

40  Am.  Dec.  496. 

*  In  re  Silverman,  101  Fed.  219 ;  Vanuzem  *.  Bostwiek,  4  Pa.  Cu.  632, 40  Am. 
Dec.  £98.  <  Sands  v.  Potter.  18S  HI.  397.  66  Am.  St.  Rep.  268. 

•  Fawcett  «.  Cash.  SB.  A  Ad.  904. 

•  Diamond  State  Iron  Co. «.  Bdl.  2  Marrd  303  (Dd.),  43  AtL  161. 

>  Nayior  *.  Izon  W<^  118  Mait.  S17. 


TBI  CONTBACT  OF  IMPLOTMBNT  33 


Ages  caused  by  such  abandonment.*  The  employer  is  liable 
in  damages  to  an  employee  discharged  without  the  agreed  notice, 
the  measure  ot  damages  tmog  the  wages  v.  3  onidoyee  would 
have  earned  during  the  po^od  of  the  notice,  subject  to  the  same 

rules  as  in  the  case  of  the  violation  of  a  contract  for  a  fixed 
period ; '  so  also  an  employee  quitting  without  notice  in  viola- 
tion of  bis  agreement  will  be  held  to  a  contract  to  forfeit  the 
wages  for  the  period  agreed  upon.' 

The  matter  of  notice  has  been  made  the  subject  of  legislation 
in  a  few  states,  the  uniform  provirion  of  the  laws  being  that  the 
obligations  as  to  time  of  notice  and  amount  oS  forfeitiure  shall 
be  reciprocal ;  *  while  a  C(mnecticut  statute  *  piohibits  the  re- 
tention of  wages  because  of  failmre  to  give  notice,  even  where 
there  was  an  agreement  requiring  notice  to  be  given. 

Section  14.  Clearance  Cards. — The  practice  of  asking  for 
a  clearance  card  or  a  letter  of  recommendation  before  engaging 
an  applicant  for  employment  does  not,  in  the  absence  of  custom, 
affect  employers  to  the  extent  of  requiring  them  to  furnish  such 
cards  or  letters  to  employees  at  the  termination  of  their  employ- 
ment.* If,  however,  there  is  a  custom  to  give  such  cards,  and 
the  contract  was  made  with  mutual  knowledge  thereof,  an  ac- 
tion lies  for  the  failure  to  give  one  on  the  discharge  of  an  em- 
ployee.' The  courts  will  tr  ke  judicial  cognizance  of  the  fact 

>  Hunt  •.  Otis  Co..  4  Mete.  464  (Maaa.). 

*  Babcock  «.  Appleton  Mfg.  Co..  03  Wia.  124. 67  N.W.  33. 

>  Fisher  V.  Walsh.  102  Wia.  172. 78  N.W.  437;  Willia  «.  Muaeotee  Mig.  Co.. 
120  Ga.  697,  48  S.  E.  177. 

«  Ma.,  R.S.  ch.  40,  sec.  61 ;  Maaa.  Acta  1009,  ch.  614,  see.  120 ;  N.J.,  O.S.  p. 
2351,  Acts  1904,  ch.  64,  sec.  27;  Fa.,  B.  P.  Dig.  p.  2073 ;  R.I.,  G.L.  cb.  108,  aec. 
26:  Wis.,  A.S.,  sec.  1728iii.  •  O.S.  sec.  46i)4. 

•  New  York.  C.  &  St.  L.  R.  Co.  «.  Schaffer,  65  Ohio  St.  414.  62  N.E,  1086; 
aeveland,  C.  C.  ft  St.  L.  R.  Co. «.  Jenkins,  174  III.  398,  51  N.E.  811. 

'  Hundlay  a.  LouiaviUe,  etc.,  R.  Co.,  105  Ky.  162,  48  S.W.  420. 


34 


LAW  or  THE  KMPLOTldINT  OW  LABOB 


that  mieh  a  eard  is  not  MMmriljr  a  reeoflHnoKlatiaii,  but  it 
rather  a  itatement  of  the  eaun  of  the  terminati<m  of  the  vm- 

ployment,  together  with  such  other  facts,  whetlMr  favorable  or 
unfavorable  to  the  employee,  as  the  employer  may  see  fit  to 
incorporate.*  Malicious  falsity  of  statement,  or  even  known 
falsity  without  malice,  would  probably  give  a  right  of  action 
against  an  employer  making  such  statements  as  to  the  reason 
for  discharie,  at  least  where  ibey  rssuH  in  preventing  the  on- 
ployee  from  seouring  emptoymoul' 

The  legislatures  of  some  states  have  undertaken  to  compel  the 
furnishing  of  a  statement  of  the  cause  oi  discharge,  when  r^ 
quested  by  the  employee.*  In  a  case  in  which  the  constitution- 
ality of  a  statute  of  this  character  was  challenged,  the  court  held 
that  as  the  desired  credentials  were  intended  not  for  public,  but 
for  private  information,  the  law  commanding  that  they  be  fur- 
nished was  vdd,  as  vtdating  the  right  of  the  liberty  of  silence, 
which  is  involved  in  the  right  of  the  liberty  of  speech ;  saying 
that  "compulsory  private  discov«ry,  evoi  from  oorporati<ms, 
enforced,  not  by  suit  or  action,  but  by  statutory  tenrw,  is  not 
allowable  where  rights  are  under  the  guardianship  of  due  pro- 
cess of  law."  *  By  like  reasoning  the  supreme  court  of  Kansas 
held  that  a  similar  law  was  unconstitutional ;  *  while  a  lower 
court  of  the  state  of  Ohio  held  that  failure  to  furnish  an  em- 
ployee with  a  written  statement  of  the  reason  for  his  discharge 
did  not  make  the  emfdoyer  liable  m  a  civil  action  for  the  penalty 

■  aevdwid,  C.  C.  *  St  L.  R.  Co.  t.  Jenkiu,  tupn;  lleDowdd  t.  Illinoto  C. 

R.  Co..  187  III.  529,  S8  N.E.  463. 

*  Hundley  r.  Louisville,  etc.,  R.  Co..  supra. 

»Fla.,  G.L.  sec.  2858;  Ind.,  A.S.  sec.  7078;  Mo.,  AcU  190S,  p.  178;  Mont. 
A.C.  aec.  3392 ;  Ohio,  Gen.  Code,  eec.  9012 ;  Texas,  AcU  1907,  oh.  87. 
«  WaHace  «.  Georgia,  C.  4  N.  S.  Co.,  94  Ga.  732, 22  So.  679. 
•Atdiim.T.*&F.B.Co.ff.BRnra.80KM*.S12.  mFlM.4fi0. 


THB  CONTBACT  07  IMPLOTlfINT  85 


provided  for  the  viobtkm  of  the  sUtute,  thereby  making  the 
l«w  of  no  effeet*  The  Texas  ttatute  dted  above  wm  luctained 
as  a  constitutimial  enactment  in  a  caw  in  which  the  doctrine  of 

the  Wallace  case  was  expressly  rejected,  and  a  judgment  for 
damages  against  a  railroad  company  for  refusing  to  state  fairly 
the  reason  for  an  employee's  discharge  affirmed.*  Without  dis- 
cussing the  constitutionality  of  the  statute,  this  judgment  was, 
on  appeal,  reversed,  since  the  employer  need  only  state  truly 
his  reason  tor  discharge,  without  detail  as  to  circumstances, 
even  though  another  person  mifl^t  draw  a  different  concluaon 
therefrom  as  to  the  nature  of  the  employee's  conduct.' 

In  a  few  states  the  forgery  of  cm  oloyers'  certificates  or  clear- 
ance cards  is  specifically  made  an  offense.* 

Section  15.  Procuring  Breach  of  Contract.  —  If  a  third  pv^j- 
son  unjustifiably  interferes  with  a  contract  of  employment, 
either  by  persuading  an  employee  to  break  a  known  contract,  or 
by  iMocuring  the  discharge  of  an  employee,  the  injured  party 
has  a  rif^t  of  action  against  such  perscm  for  damages  caused  by 
his  interference.*  And  this  is  true  even  though  the  contract  was 
terminable  at  the  option  of  the  parties.'  It  is  therefore  of  no 
advantage  to  the  defendant  to  show  that  the  onployer  himself 

« CnOl  t.  Toledo  ft  O.  C.  R.  Co.,  7  C.  C.  Rep.  132. 

»  St.  Loub  8.  W.  R.  Co. ».  Hizon,  126  8.W.  338  (Tex.  Civ.  App.). 

•  8ame  caae,  137  8.  W.  343  (Tex.). 

•  Ga..  Acts  1899,  p.  79 ;  Minn.,  R.L.  sec.  5053 ;  Wis.,  A.S.  sec.  4464b. 
•Lumley  •.  Oye,  2  El.  4  BI.  216;  Jones  ».  Leslie,  (Wash.)  112  Pac.  81; 

Bixby  V.  Dunl»i„  .  'i  N.H.  456,  22  Am.  Rep.  475 ;  Walker  r.  Cronin,  107  Mass. 
666;  Angle  r.  Chicago,  etc.,  R.  Co.,  151  U.S.  1.  14  Sup.  Ct.  240;  Huskie  ». 
Griffin,  75  N.H.  346,  74  Atl.  595. 

•  Chipley  ».  Atkinson,  23  Fla.  206, 1  So.  934 ;  Lucke  ».  Clothing  Cutters,  etc., 
77  Md.  396, 26 Ati.  60S ;  Per  contra,  Hdder  t.  Canoon  Mfg.  Co.,  138  N.C.  308, 60 
8JL681. 


36 


LAW  OP  THE  EMPLOYMENT  OF  LABOR 


incurs  no  liability  by  discharging  his  employee ;  *  nor  is  it  ma- 
terial, so  far  as  the  right  of  action  of  a  discharged  person  is  con- 
cerned, whether  his  discharge  is  procured  by  fraud  or  intimida- 
tion, or  merely  by  successful  persuasion.' 

In  an  action  by  an  employee  to  procure  damages  for  causing 
his  discharge,  the  dedaration  is  usually  made  that  it  was  will- 
fully and  maliciously  procured ;  but  this  mgnifies  nothing  more 
than  that  the  act  was  knowingly  done  to  the  apparent  damage 
of  the  person  discharged,  and  without  lawful  justification  on  the 
part  of  the  instigator,  i.e.,  as  of  competition  in  trade  or  employ- 
ment.' Where  the  defendant  did  nothing  more  than  to  an- 
swer an  inquiry  of  an  employer,  stating  such  facts  as  led  to  the 
discharge  of  the  plaintiff,  no  damages  can  be  recovered.^  So  the 
mere  imparting  of  information,  in  the  absence  of  fraud  or  co- 
eroion,  pves  inse  to  no  liability,  though  it  in  e£fect  leads  to  a 
discharge.*  The  question  of  motive  may  be  properly  consid- 
ered, and  may  be  decisive  in  a  given  case,*  though  the  mere  fact 
of  bad  intent  does  not  make  that  actionable  which  does  not 
amount  to  a  legal  injury.'  Where,  however,  there  is  an  improper 
and  malicious  motive,  not  only  actual  but  also  exemplary  dam- 
ages may  be  recovered.'  The  communication  to  the  employer 
need  not  be  libelous  per  se,  but  if  it  is  effective  in  procuring  the 

I  Moran  v.  Dunphy,  177  Maas.  48S.  N  N.E.  13S. 

*  Moran  ».  Dunphy,  tupra. 

•Haakina  t.  Royster,  70  N.C.  601, 18  Am.  Rtp.  780;   LoodoB  GuvutM, 

etc.,  Co.  V.  Horn,  206  111.  493.  69  N.E.  526. 

*  Wabaah  R.  Co.  t.  Young,  162  Ind.  102,  69  N.E.  1003. 

*  Baker  v.  Insurance  Co.,  23  Ky.  L.  R.  1174.  1178,  64  S.W.  913,  967. 

*  Moran  •.  Dunphy,  tupra;  Gibaon  «.  Fidelity  A  Caaualty  Co.,  232  111. 
40, 83  N.E.  839 ;  Plant «.  Wooda,  176  MaM.  AM.  67  N.E.  1011. 

'  Allen  t.  Flood,  67  L.J.Q.B.  119. 

*  Gibaon  •.  Fidelity  &  Caaualty  Co.,  tujm. 


THE  CONTRACT  OF  EMPLOYMENT  37 


discharge  of  the  employee  to  his  loss  and  damage,  its  publication 
is  actionaUe.*  Where,  however,  a  discharge  is  procured  on  the 
basis  of  representations  as  to  misconduct  on  the  part  of  an 
employee,  the  charges  being  verified  on  investigation  by  the 

employer,  the  informant  is  not  liable  in  damages,  nor  does  the 
fact  that  he  bore  ill  will  to  the  discharged  employee  make  him 
so.*  In  fact,  some  courts  have  denied  that  motive  should  be 
considered  in  connection  with  cases  of  this  nature,'  since  if  an 
act  is  injurious  and  unlawful,  it  is  actionable,  irrespective  of 
motive,  and  whether  malicious  or  not ;  while  if  not  unlawful  or 
injurious,  it  is  not  actionable,  however  maliciously  performed.* 
In  another  case  it  was  siud  that  motive  is  immaterial  where  the 
acts  considered  are  lawful,  but  if  done  without  Intimate  in- 
terests to  protect,  it  is  unlawful  to  maliciously  injure  another's 
business/  The  differences  would  seem  to  be  more  apparent 
than  real,  though  obviously  some  courts  lay  considerable  stress 
on  the  question  of  motive ;  but  the  rule  seems  well  stated  in  a 
British  case,  in  which  it  was  said  that  an  act  which  does  not 
amount  to  a  legal  injur'  cannot  be  actionable  because  done 
with  a  bad  intent.* 

So  if  an  employer  brings  action  on  the  ground  of  enticement, 
he  must  show  'Iiat  the  act  was  willful  or  intentional,  and  that  it 
did  injure,  or  was  calculated  to  injure  him,  the  actor  being  with- 
out a  justifiable  cause.   Malice  is  said  to  be  of  the  essence  of 

« H<rflenbeck  ».  Ristine,  105  Iowa,  488,  75  N.W.  355. 

•  Lancaster  r.  Hamburger,  70  Ohio  St.  156,  71  N.E.  289. 

•  Macauley  r.Tiemey,  19  R.I.  265, 33  Atl.  1 ;  Bohn  Mfg.  Co.  v.  HoUia,M  Minn 
aas,  55  N.W.  1119. 

•  Payne  v.  Western  &  Atlantic  R.  Co.,  13  Lea  607  (Tenn.). 
»  Erti  »,  Produce  Exchange,  79  Minn.  140,  81  N.W.  737. 
•Sttmnat-Nflwiiluuii,  13C.B.388;  AUut  t.  Flood,  raynk 


38 


LAW  OF  THE  EMPLOTMENT  OF  LABOR 


such  an  action,  but  the  charge  o!  malice  is  supported  by  show- 
ing that  there  was  notice  of  the  contract  of  ^ployment,  and 
that  the  employee  has  been  persuaded  not  to  enter  into  or  con- 
tinue in  the  service  contemplated  thereby.  The  retention  of 
an  employee  whose  services  are  due  to  another  under  an  existing 
contract,  after  knowledge  of  such  contract,  even  though  the 
second  employer  did  not  know  at  the  time  of  the  engagement 
that  such  a  contract  was  in  existence,  is  ground  for  action.^  Con- 
tracts for  piece  work,  where  the  work  agreed  for  is  abandoned 
in  an  incomplete  condition,  are  on  the  same  footing  as  con- 
tracts for  a  fixed  term.*  This  principle  is  held  also  to  apply 
to  employees  engaged  for  a  season,  as  for  the  making  of  a  crop.' 

Where  a  contract  has  been  entered  ir*o,  it  is  not  necessary  for 
the  maintenance  of  an  action  that  the  rendition  of  the  service 
be  actually  begun  ;^  but  there  must  be  a  knowledge  of  the 
contract,  since  intent  to  deprive  the  employer  of  service  must 
be  shown.*  Where  service  is  actually  being  ^^dered,  there 
need  not  be  a  binding  contract  to  support  the  action,  since  the 
employer  is  none  the  less  entitled  to  at  least  the  opportunity  for 
the  services  of  an  employee  merely  at  will  •  or  one  under  a  con- 
tract which  could  not  be  enforced  against  him,  as  of  a  minor, 
without  being  required  to  submit  to  officious  interruptions  by 
third  parties.^  But  a  mere  attempt  without  damage  will 
support  no  action.*   Where  the  employee  has  violated  a  void- 

>  Butterfield  r.  Ashley,  6  Cush.  249  (MaM.) ;  Campbell «.  Cooper,  34  N.H.  40. 

•  Walker  v.  Cronin,  107  Mass.  655. 

•  Hukina  «.  Royater,  70  N.C.  601, 16  Am.  Rep.  780;  Danid  t.  BmutagM, 
6  S.C.  297,  24  Am.  Rep.  471.  *  Lumley  r.  Gye,  2  El.  A  BI.  216. 

•  Butterfield  v.  Ashley,  tupra. 

•  Salter  «.  Howard,  63  Ga. ;  Frank  «.  Herold,  63  N.  J.  £q.  443.  62  Ati.  163. 
'  Wood.  M.  A  B..  3d  ed..  ne.  3S4 ;  Kmum  t.  Boyoott,  3  H.  Bl.  611. 

•  Bool ».  Domdi.  75  Miat.  S57,  ^  So.  8SB. 


THE  CONTRACT  OF  EMPLOYMENT  3Q 


able  contract  ci  his  own  volition,  or  left  service  under  a  contract 
at  will,  no  action  lies  against  a  subsequent  emi^oyer ;  ^  so  also 
if  there  is  an  agreement  to  employ  at  the  expiration  of  a  term  of 
hiring,  even  though  otherwise  a  renewal  of  the  contract  might 
reasonably  be  expected.* 

Section  16.  Statutes  Forbidding  Interference  with  Contracts.  — 
The  same  economic  conditions  that  led  to  the  enactment  of  laws 
which  attempt  to  prevent  the  violation  of  contracts,  especially 
where  advan<»8  are  involved,  doubtless  give  rise  to  laws  di- 
rected against  the  mticonent  dt  employees  who  are  under  con- 
tract for  a  given  time.*  These  aim  their  penalties  at  "any 
ponon  who  knowingly  interferes  with,  hires,  employs,  entices 
away  or  induces"  an  employee  to  leave  the  service  of  anothe  , 
or  similar  acts  less  particularly  enumerated,  and  have  been  held 
constitutional.*  The  attempt  entails  the  same  penalty  as  the 
actual  performance  under  the  Alabama  and  Georgia  statutes. 
The  penalties  are  either  fine  or  imprisonment,  and  may  or  may 
not  be  coupled  with  a  liability  for  any  advances  made  to  the 
inveigled  employee,  or  for  damages  suffered  by  reason  of  the 
commission  of  the  prohibited  act.  The  right  of  action  in  dam- 
ages is  the  only  redress  given  in  some  states,  thus  making  it  only 
civilly  and  not  criminally  actionable. 

In  so  far  as  this  action  alone  is  contemplated,  the  statute  only 

'  LaDghain  ».  State,  55  Ala.  114  ;  Campbell  v.  Cooper,  34  N.H.  49. 
>  BoBton  Glaw  Co.  «.  Binney,  21  Mass.  (4  Pick.)  426. 

« Ala.  Code,  sec.  68fiO :  Ark.,  Aot«.  1908,  No.  298 ;  FI».,  G.S..  wets.  3232  ;  0»., 
Peoal  Code,  sees.  121.  122.  Act  No.  390.  Acts  of  1901 ;  Ky.  Stat.,  sec.  1349; 
La.,  Aets,  1906,  No.  64;  Miss.,  Code.  sec.  1146;  S.C.Cr.  Code,  sec.  359 ;  N.C., 
Revisal,  sec.  3365;  Tenn.,  Code,  sec.  4337. 

*  Tarpley  ».  State,  79  Ala.  271.  Murrell'i  Caae,  44  Ala.  367 ;  Hool  ».  Dorroh, 
78  MiM.  287.  23  So.  829.  Hightower  *.  State.  72  Oa.  482 ;  Per  contra,  Peonage 
Chh.  m  Fed.  671  (Ala.  Stat.). 


40 


LAW  OF  THE  EMPLOYMENT  OF  LABOR 


enforces  the  oonmKm  Uw  right,  and  actual  damage  must  still 
be  shown.*  Damages  recoverable  do  not  include  debts  due 
the  employer  or  landlord.*  The  statute  may  prohibit  the  en- 
ticement of  any  one  to  leave  his  employer,  or  hiring  him  before 
the  expiration  of  his  contract,  without  the  consent  of  the  em- 
ployer. Under  this  law  there  is  no  offense  where  the  employee 
has  not  actually  entered  on  the  s^vice.*  On  the  oth«r  hand,  a 
second  emjAoyer  has  been  held  liable  for  employing  <me  before 
tiie  expiration  of  his  contract,  regardless  of  the  fact  that  the 
oni^oyee  had  already  broken  his  contract,*  the  statute  prohibit- 
ing such  employment  without  the  former  employer's  consent. 
This  agrees  with  the  doctrine  of  the  case  at  common  law  of 
Butterfield  v.  Ashley,  supra.  In  other  cases '  it  was  held  that 
there  was  no  ground  for  criminal  action  for  the  mere  employ- 
ment of  one  who  had  left  his  former  master.  A  statute  oS  the 
United  States  on  this  subject  makes  it  an  offense  to  procure  or 
&atic6  any  artificer  or  workman  employed  by  the  United  States 
in  any  arsenal  or  armory  to  depart  from  his  work  during  the 
term  of  his  contract  of  employment,  or,  after  notice  of  such 
contract,  to  retain,  hire,  or  conceal  such  workman.*  It  is  ob- 
vious that  such  statutes  must  be  construed  strictly  according 
to  their  language,  so  that  no  generally  applicable  rule  can  be 
laid  down. 

The  interference  may  be  prohibited  no  less  for  the  safety  of 

■  Hool  f .  Dorroh,  supra. 

*  Chraitmsn  v.  Ruaaell,  73  Miss.  452,  18  So.  660. 

*  Hendriz  •.  SUte,  79  Mif^  368,  30  So.  708. 

*  ArmirtMul  v.  Chfttteni,  71  Min.  800,  15  So.  S9.   See  alao  Trnqdey  f .  State. 

tupra. 

•Jackson  v.  State,  16  So.  299  (Miaa.) ;  Morria  v.  Neville,  79  Team.  (11  Lea) 
371. 

*  3S  Stat.  1087.  Comp.  Stat.  Supp.  p.  1404. 


THE  CONTRACT  OP  EMPLOTMENT  41 


person  and  property  than  for  the  sake  of  procuring  the  comple- 
tion of  a  labor  oontraot  as  ordmarily  understood.  Laws  of  this 
sort  are  to  be  found  in  connection  with  mine  r^rulations,  for- 
bidding the  intimidation  of  or  the  interference  with  hoisting 
engineers; *  or  with  the  performance  of  the  duties  of  raiht)ad 
employees,*  or  of  employees  of  other  quasi-public  corporations.* 

The  giving  of  gifts  or  gratuities  to  an  employee  with  intent  to 
influence  him  in  relation  to  his  employer's  business,  or  the 
acceptance  by  employees  of  such  gifts  is  prohibited  by  statutes 
of  recent  enactment  in  a  number  of  states ;  *  so  also  of  bonuses 
or  discounts  to  employees  who  purchase  supplies  or  materials 
for  their  employers,  under  most  of  the  laws  dted ;  the  same 
prohibition  may  be  applied  to  the  giving  or  receiving  of  tips  in 
hotels  or  on  common  carriers.*  A  dealer  allowing  an  employee 
a  discount  in  violation  of  such  a  statute  cannot  recover  any- 
thing on  his  contract,  the  entire  contract  being  made  void  by 
the  illegal  act  of  granting  discount." 

While  these  statutes  are  mentioned  here  on  account  of  their 
close  relation  to  each  other,  it  is  clear  that  they  are  not  aU 
designed  strictly  to  prev«it  interference  with  employmoit,  but 
to  protec ;  in  a  manner  the  financial  interests  of  the  employer 
and  of  the  public. 

Where  intimidation  is  practiced  in  the  interference,  not  only 
is  there  civil  liability,  but  such  conduct  is  declared  a  penal  offense 

>  Ala.,  Code,  ne.  1029 ;  Ind.,  Acts  1005,  eh.  SO,  eee.  10. 

>  Dd.,  R.C.  p.  928 :  III.,  R.S.  ch.  114.  lec.  100 ;  Kua.,  0.8.  aee.  2875. 

•  Me.,  R.S.  ch.  124,  sec.  9. 

♦  N.J.,  Acta  1909,  ch.  284 ;  Wash.,  Acta  1000.  eh.  240.  eeea.  426,  427;  Conn., 
AoU  1005,  ch.  99 ;  Iowa,  AcU  1907,  chs.  183,  184;  N.Y..  C.L.  eh.  40,  mo.  430. 

*  Wadi.,  Acta  1909,  ch.  249.  sees.  439,  440. 
•G«ieralTinB^airCo.e.Priee.  115  N.  Y.  8aro>  171. 


42 


LAW  OF  THE  EMPLOYMENT  OF  LABOR 


by  the  statutes  of  a  number  of  states.   Inasmuch  as  this  phase 

of  the  question  is  frequently  introduced  into  cases  involving  the 
activities  and  rights  of  strikers,  its  discussion  will  be  deferred 
until  the  subject  of  labor  organizations  is  taken  up. 

Section  17.  Right  of  Employer  to  Recover  for  Injuries  to 
Employee.  —  A  doctrine  that  is  obviously  rooted  in  the  older 
view  of  close  personal  relationships  is  one  that  gives  the  em- 
ployer a  right  of  action  against  a  third  person  who  injures  his 
employee  in  such  wise  as  to  deprive  the  mployer  of  his  ser- 
vices.* The  employer's  right  to  recover  does  not  interfere  with 
the  employee's  right  to  sue  the  same  party  for  damages  for  such 
personal  injuries  as  he  may  have  received.*  This  doctrine,  like 
that  which  allows  a  suit  by  an  employer  for  the  seduction  of 
a  female  employee '  or  for  libel  injuring  the  employee's  character,* 
is  grounded  on  the  view  that  the  employer  has  an  interest  or 
property  in  the  services  of  one  in  his  employment;  so  that 
where  he  is  deprived  of  them,  or  their  value  is  diminidied,  the 
onployer  is  entitled  to  redress,  actual  loss  being  necessarily 
proved  to  support  an  action.' 

A  statute  that  may  be  noticed  under  this  general  head  is  one 
that  gives  employers  a  right  of  action  against  persons  selling 
liquor  to  employees,  producing  intoxication  and  consequent 
damage  to  the  employer.'  Such  laws  may  or  may  not  require 
previous  notice  not  to  sell ;  they  are  to  be  strictly  construed, 

>  Woodward  v.  Washburn,  3  Den.  369  (N.Y.) ;  McCarthy  ».  Guild,  12  Mete. 
291  (Maas.). 

*  Rogers  «.  Smith,  17  Ind.  323. 

•Funnan  Aptdegate.  23  N.J.L.  28;  NidtaiaoB  w.  Stryker,  10  Johna.  118 
(N.Y.) ;  Hewitt  r.  Prime.  21  Wend.  79  (N.Y.). 

*  Riding  ».  Smith,  13  Albany  L.  J.  441. 

*  Fluker  t.  R.  Co..  81  Ga.  461,  8  8.E.  629. 

*  WMh.,  A.C.  MO.  2048 ;  Maaa..  R.L.  eh.  100,  no.  6S. 


THE  CONTRACT  OP  EMPLOYMENT  43 


and  where  they  give  a  right  of  action  for  damages  only,  no  other 
proceedings  can  be  had  under  the  statute,  as  by  way  of  injunc- 
tion to  abate  a  nuisance,  since  the  employer  has  no  such  prop- 
erty in  his  workmen  as  to  entitle  him  to  a  writ  against  one 

keeping  open  a  place  to  which  they  voluntarily  resort.* 

Section  18.  Civil  Rights  of  Employees.  —  A  majority  of  the 
states  of  the  Union  have  enacted  laws  whose  object  it  is  to  pro- 
tect workmen  in  their  contracts  of  employment  while  exercising 
theur  rights  as  dtisens.   Such  laws  may  be  broad  enough  in 
theur  terms  to  prohibit  employers  from  interfering  with  their 
employees  in  the  exercise  of  "any  natural  right  or  any  right  or 
privilege  of  dtisenship;"*  or  they  may,  as  is  most  frequently 
the  case,  direct  their  prohibitions  against  interferences  with  the 
exercise  of  the  right  to  vote,  either  by  demanding  an  inspection 
of  the  employee's  ballot,'  or  by  printing  on  the  pay  envelopes 
in  use  the  names  of  candidates,  or  mottoes,  arguments,  or 
threats  intended  to  influence  the  political  action  of  employees, 
ot  the  posting  of  any  handbill  or  notice  stating  that,  in  case  of 
the  success  of  any  particuhu-  candidate  or  party,  the  establish- 
ment will  dose.*  Threats  of  dismissal  or  reduction  of  wages  on 
account  of  an  employee's  vote,*  or  interferii^  with  his  candi- 
dacy for  oflice,'  or  otherwise  attemptmg  to  influence  his  action 
may  also  be  made  an  offense.   One  state  prohibits  the  appoint- 
ment of  an  employer,  manager,  or  foreman  of  raihroad,  mining 

« Northern  P.  R.  Co.  t.  Whidoi.  149  U.8. 167, 18  Sup.  Ct.  823. 
'Minn.,  R.L.  see.  S173. 

*  Ala.,  Code,  sees.  6804,  6805. 

«Cal.,  Penal  Code,  leo.  69  ;  N.Y.,  C.L.  ch.  40,  tee.  772  ;  8.D..  FM>.  Code, 
■ee.e3. 

•  Conn..  G.8.  sec.  1700;  IMto,  Pm.  Code,  ne.  4885;  Ind.,  AS.  ten.  2341 ; 
Kjr.  SUt.  sec.  1574A. 

•Wjro..  RJI.no.  2BS.' 


44         LAW  or  TBI  BMPLOTMSNT  OF  LABOR 


or  nuuDufaeturing  wm-k  carried  on  in  the  precinct,  as  judge, 
clerk,  or  watcher  at  the  pdb  in  any  deetion.*  Bfany  of  theae 
laws  provide  that  time  to  vote  shall  be  aUowed  Mnplojreee, 
either  a  fixed  number  of  hours  or  a  half  diqr;  or  the  day  of 
election  may  be  declared  a  legal  holiday. 

Employers  are  forbidden  by  the  laws  of  a  few  states  to  dis- 
charge employees  on  account  of  their  membership  in  the  Na- 
tional Guard,  or  to  refuse  them  permission  to  drill  or  perform 
active  service  when  ordered  out.*  Interference  with  such  mem- 
bers in  their  onidoyment,  or  with  thdr  onployos  in  tiior  buri- 
ness  may  likewise  be  forbidden;  abo  discrimination  agamst 
such  workmen  by  labor  cnrganisations  on  account  of  their 
membership.* 

>  Colo.,  A.S.  Supp.,  sees.  1625wl/8,  1625wl/4. 

*  Kana..  G.S.,  sec.  4068 ;  Waah..  Acts  1009,  cb.  134,  aee.  69. 

•  Cd..  Pui.  Code.  mo.  421 ;  lU.,  Aete  1809,  p.  437;  Me.,  Aeta  1009.  A.  300. 
■ee.  116:  Mich.,  Acta  1909,  No.  194;  N.Y..  CJt.  Ch.  40,  mm.  1480.  1481; 
Waah..  AcU  1909.  ch.  134,  aeca.  67. 68. 


CHAPTER  II 


WAOBS 

Section  19.  DeJtnUion.  —  Wages  are,  in  both  oommon  and 

legal  language,  the  compensation  paid  or  to  be  paid  for  services, 
whether  computed  by  the  day,  week,  or  month,  or  by  the  piece 
or  job.   Payment  for  piece  or  job  work  is  frequently  spoken  of 
as  earnings,  but  it  differs  in  no  sense  from  payment  computed  by 
time,  the  words  "earnings"  and  "wages"  beingoften  used  together 
in  statutes  on  the  subject.  In  mining  and  elsewhere,  much  of 
the  work  is  done  by  what  is  called  contracting,  one  man  being 
paid  by  the  ton  or  other  quantity,  he  paying  a  helper  or  helpers 
a  fixed  sum  daily  or  at  a  given  rate  per  unit  used ;  but  the  sums 
received  by  the  different  workmen  are  alike  wages ; '  so  also 
where  a  group  of  men  are  employed  in  the  joint  production  of 
a  designated  unit,  and  the  payment  therefor  is  divided  among 
thraa  fractionally  or  by  a  percentage.   The  profits  of  con- 
tractors irkme  agreements  are  made  for  the  performance  of 
work  involving  individual  direction  and  the  employment  and 
guidance  of  subordmates,  as  in  the  erection  of  a  building  or  the 
construction  of  public  works,  are  not  classed  as  wages.*  The 
word  "salary"  is  also  said  by  some  courts  to  be  synonymous  with 
wages,*  though  in  others  it  is  held  to  mean  a  laiger  omnpoua- 

>  Coal  Co.  ».  Costello.  33  Pa.  (9  Casey)  241. 

«  Heard  ».  Crum.  73  Miu.  157. 18  So.  934 ;  Lang  ».  Simmons,  64  Wia.  626, 26 
N.W.  800.         «  Bovmrd  •.  Ford.  83  Mo.  App.  488 ;  Com.  t.  Butlw,  99  Fk.  685. 

45 


46 


LAW  OF  THE  EMPLOYMENT  OF  LABOR 


tkm  tot  more  important  seryices/  or  payment  for  senrioee  other 
than  cS  a  manual  or  mechaiUcal  kind.*  Sahuries  of  publie 
officers  are  not  esraqyt  fran  garnishment  under  laws  enmpt- 
ing  wages.* 

No  wages  can  be  recovered  for  services  rendered  in  violation 
of  tlie  provisions  of  the  law.  Tlius  an  engineer  working  without 
a  license  when  the  law  requires  one  can  recover  nothing  in  a  suit 
for  wages  ;*  nor  can  one  who  works  on  Sunday  where  the  law 
prohibits  such  labor; *  or  who  works  more  than  eight  hours  in 
violation  of  statute.' 

The  payee  must  in  general  be  either  the  person  rendoring  the 
service  or  his  legal  representative,  though  a  few  states  have 
laws  for  the  payment  of  wages  to  the  widow,  minor  children, 
or  other  heirs  of  a  deceased  employee  without  the  formality 
of  administration,  but  only  in  case  the  debt  does  not  exceed  the 
sum  fixed  by  the  statute,  this  amount  varying  in  different  states 
from  seventy-five  to  two  hundred  dollars.'  Provisions  as  to 
the  rights  of  assignees,  and  other  crediUxs,  and  of  married 
women  and  minors  are  found  in  the  statutes  of  neariy  every 
state,  and  will  be  noted  under  their  various  headings.  Where 
wages  are  paid  in  violation  of  the  provisions  of  law  applicable 
in  the  case,  the  employer  cannot  plead  such  unlawful  payment 

>  Meym  «.  City  of  New  York,  60  Hun  201, 23  N.  Y.  Supp.  874. 
»  /n  re  Stryknr,  l.W  N.Y.  526.  53  N.E.  626. 

•McLeUan  v.  Young.  54  Ga.  399,21  Am.  B«p.  276;  Thomm  t.  Walnut 
Land,  etc.,  Co.  43  Mo.  App.  663. 

•  The  Pione».  Deady  72,  Fed.  Caa.  No.  11,177. 

•  McGrath  v.  Merwin,  112  MaM.  487, 17  Aoi.  B^.  110;  Canoa  Cdhona. 
101  Me.  456,  64  AU.  838. 

•  Short  •.  Min.  Co..  20  Utah  20. 67  Pfte.  720.  (Suit  waa  for  pay  for  overtime, 
work  only.) 

» Ala.,  Code,  sec.  4201 ;  Ga.,  Acts  1901.  p.  60;  Miss.,  Code,  aec.  2133 ;  Pa., 
Aeta  1007,  Na  163. 


WA0I8 


47 


as  a  defense  in  an  action  to  recover  wages  earned.  Thus  in 
the  case  of  a  law  prohibiting  the  payment  of  seamen's  wages 
in  •dvance,»  payments  made  in  violation  thereof  were  not 
altowed  as  a  mifoB  in  an  aetion  to  recover  the  whole  amount  of 
wages  earned  under  the  contract.* 

SacnoN  20.  Rate.  —  The  rate  of  wages  is  usuiUly  fixed  by 
agreement,  but  where  no  agreement  is  made,  the  law  implies 
a  promise  to  pay  as  much  as  the  services  are  reascmably  worth, 
or  a  quantum  meruit.'  Where  a  rate  is  agreed  upon,  no  action 
on  a  quantum  meruit  can  be  brought/  and  if  it  can  be  shown  in 
an  action  of  this  sort  that  a  rate  was  actually  agreed  upon,  that 
rate  will  control  the  decision  of  the  court*  On  the  other  hand, 
a  suit  on  contract  cannot  secure  a  recovery  on  a  quantum  meruit.* 
If  the  price  is  agreed  upon  after  entrance  on  service,  the  agreed 
rate  relates  back  to  the  beginning  of  such  service.'  Changing 
the  rate  of  wages  is  in  effect  making  a  new  contract,  so  that  the 
courts  \ri!l  sanction  neither  a  settlement  by  proffer  of  a  lower 
rate  than  the  one  agreed  upon,'  nor  a  demand  for  a  higher  rate 
on  the  ground  that  the  work  was  worth  more,"  unless  mutual 
consent  is  properly  shown.  Thus,  though  competence  is  assumed 
and  an  employer  may  i^htfully  discharge  an  employee  for  in- 

>  U.S.,  30  Stat.  763. 

•  The  Alesander  M.  Lawrence,  101  Fed.  135. 

» Henderaon  Bridge  Co.  t.  McGrath,  134  U.S.  260. 10  Sup.  Ct.  730;  Duboia  t. 
Del.  A  H.  Canal  Co.,  4  Wend.  292  (N.Y.), 

•  Clark  V.  Smith,  14  Johns.  326  (N.  Y.). 

•  Rubin  V.  Cohen,  113  N.Y.  Supp.  843. 

•  Birlant  ».  Cleckley,  48  S.C.  298,  26  S.E.  600. 
»  Royal  t.  Grant,  6  Ga.  App.  643,  63  S.E.  70S. 

•Haekman  v.  Flory,  16  Pa.  St  196;  Pennington*.  Lumber  Co.,  122  S  W 
923  (Tex.  Civ.  App). 

•  Snyder    Wright,  4  E.  D.  Smith  367  (N.Y.) :  Wallaoe  t.  Vloyd,  29  Ptu  St 


48 


LAW  or  TBI  nCPbOTMBIT  OP  LABOB 


eompetenoe,  he  eannoi  lefuae  to  pay  wifn  at  the  apeed  rate 
on  the  plea  that  the  emplojree  was  umkUlful,  aa  his  retmtion 
in  anrvioe  will  be  ooostrued  ae  a  wahrer  of  the  eeipkqrar'i  rif^t 

to  discharge.'  Prior  notice  of  reduction  of  wages  may  be  re- 
quired by  statute,'  though  in  view  ot  t  he  rule  of  law  that  an 
agreed  rate  controls  until  a  change  is  as  sented  to  by  both  par- 
ties, the  importance  of  such  a  law  doc.-i  not  seem  to  be  gre 

Rates  of  wages  have  been  fixed  by  .statute  in  a  few  s:  tes 
though  only  in  the  matter  of  employment  on  puUic  works,* 
or  in  the  printing  offioea  d  the  state  or  the  United  States.^ 
Besides  these,  a  Vhrguiia  statute  dedaies  that  a  reasom^  stun 
shall  be  paid  for  services  in  salvage,  and  in  case  ot  t\m  failure 
of  the  parties  interested  to  agree,  they  shall  each  choose  an 
arbitrator,  and  a  state  official  sliali  choose  a  third,  this  board  to 
determine  the  rate.* 

The  state  of  Massachusetts  is  the  first  to  look  seriously  toward 
the  regulntbn  of  wages  in  private  undertakings,  having  provided 
for  a  conuniaaion  to  stody  ihe  maUer  ot  the  wages  wwnen 
and  minors,  with  a  view  to  fixing  minimum  nitm  of  wages  for 
such  classes  of  employees.*  Smoe  laws  regulating  the  hours  of 
labor  of  such  persons  are  valid,  there  appears  to  be  at  least  an 
open  field  for  an  attempt  to  regulate  their  wages  also,  though 
the  chief  reason  for  iimiting  the  hours  of  labor  of  females,  i.e., 

>  Clark  V.  Fenaky,  3  Kans.  389. 

•  Mo..  R.  S.  sec.  1009 ;  TexM.  R.  S.,  lee.  4544 :  U.S.,  30  SUt.  424,  sec.  9, 0.8^ 
p.  8206  (aprUes  only  to  reedven  of  ntlroMla  appointed  by  Fednvl  eourta). 

•  Cal.,  Sims*  Gen.  Laws,  No.  2894  :  Del.,  Acts  1903,  ch.  410  (City  of  Wilming- 
ton only) ;  Nebr.,  Acta  1903,  ch.  17  (cities  of  first  claas) ;  Nev..  Acta  1907, 
ch.  202 ;  N.Y.,  Con.  L.,  ch.  31,  aeo.  3. 

•  Cal.,  Sima'  Pol.  Code.  aeo.  631 ;  Kaaa.,  Acta  1907.  eh.  SM :  VM.,  38  Stat. 
607. 31  Stat.  643. 

•  Code.Mo.19M.  < Banlve appvovsd  Majr  11.  mi. 


on  Moooil  of  pk]P»ologiMl  d»ereiioM  between  males  and  fe- 
■uIm,  cannot  be  died  at  lupporiiag  a  law. 

Uwa  regulating  wages  on  poblio  ^vw^  n»y  fix  an  abiolttte 

aimimum  rate,  or  they  may  pravid  that  current  or  prevailing 
rate,  shall  be  paid.   A  law  of  Ina.an.«  fixing  a  minimum  rata 
was  held  to  be  unconsf  tution  il,  since  it  in^rfered  with  the  free- 
dom d  countieb,  till.-,  and  towns,  which      re  !       to  be  cor- 
POWtWMwtth  a  right      cor=      t  in  ma.       .ilecting  their 
own  i^srals;  and  afej  bardene.l  the      .en      taking  his 
property  imtettt  due  pro^  of  law.«  a    lula.  law  of  New 
York'  was  upheld  in  th    case  of  a        ■  en     yee  o  the 
state  under  a   uperint.^nden   of    r  ^ 
court  finding  no  XI    ^    .r    aplie..       riction  in  the  constttu- 
tion  of  the  Stat.    ->on  f  •    ower  legislature  to  fix  and 

^lare  the  comt,  ^tic  e  for  labor  or  services  per- 
formed  upon  the  pubBe  woria,  c.e  state,  declaring  further 
that  wafM  m  fbed  caanot  be  ,  nluced  by  the  ofllcer  under 
wheat  •ny  e^pteye^  mi^  wor  A  subsequent  Uw  of  this 
state  Erecting  conti  .;tor<»  a  .  a-  p^o  officers  to  pay 
c-  rrer^  local  rates  of  wag  declared  unconstitutional  as 

excee<  tl  power  of  t!  lature  in  the  matter  of  both 
*^  "^^'"^  '  interference  with  the  rights 
=f  both  ,  ay  and  u  co  actor  being  condemned."  Later 
'h»*<  Ue,  .ion  a  nio.  ^ed  to  the  extent  of  holding  the  law  ap- 
plicabk  .  eoati  ta  m  which  the  city  was  directly  -ested 
miJdng  Che  k  ^  i,  aOd     it.  .ppUcation  to  contractors  only.' 

'AetilOOI,,  J82. 

'  Street  r.  Varney  Eleo.  Supply  Co.,  160  Ind.  838.  08  N.E.  805 

'tSl^'S-!^-  :a«k..State.  142N.Y.  101.36  N.E.  817. 

Am  18OT.  ch.  415.  •  People  ..  Coler.  166  N.  Y.  1.  59  N  E  716 

'Ily«,.atrolN«rYork.mN.Y.»I.aON.li.MO. 


50 


LAW  OF  THB  EMPLOYMENT  OF  LABOR 


Following  these  decuncms  came  the  adopticm  of  an  amend* 
m«it  of  the  constitution  of  the  state,  empowering  the  legislature 
to  regulate  the  conditions  of  employment  on  the  public  wor'cs 
of  the  state,  whether  directed  by  the  state  or  a  subdivision 
thereof,  or  by  a  contractor.  The  law  previously  declared  un- 
constitutional was  thereupon  reSnacted,'  and  has  been  sus- 
tained by  the  court  of  last  reeort  of  the  state.*  The  view  of 
the  Supreme  Court  of  the  United  States,  laid  down  in  a  case 
where  the  question  turned,  not  <m  rates  of  wages,  but  <m  the 
hours  of  labor,  holding  that  municipalities  are  but  the  agents, 
of  the  state  for  the  conduct  of  local  affairs,  and  are  properly 
subject  to  such  regulations  as  the  state  may  see  fit  to  prescribe, 
would  sustain  such  laws  as  the  above  generally.' 

Section  21.  Deductions  from  Wages.  —  The  discounting  of 
time  checks  by  the  employer  issuing  them,  or  by  his  agent,  may 
be  prohibited  by  statute,*  or  the  amount  that  may  be  deducted 
f <Nr  payments  made  in  adyanoe  of  the  regular  payd^r  limited.' 
The  mllful  refusal  to  jmy  a  wage  debt  with  the  mtent  of  obtun- 
ing  a  discount  thoreon  may  be  punished  as  a  misdemeanor,' 
or  as  a  crime.' 

Deductions  by  way  of  fines  for  imperfect  work,*  or  "for  any 
reason,"  '  may  be  prohibited  or  restricted.  But  a  law  that 
prohibits  the  imposition  of  a  fine  or  the  withholding  of  wages 
on  account  of  imperfections,  unlawfully  hiterferes  irith  the  right 
to  make  reasraable  omtracts ;  >*  though  if  It  idlows  for  fines  <»ily 

>  Gout,  art  la.  MO.!.  Am.  IMS:  Aeto  IMS.  eh.  806. 

•  People  M  Ml.  YnUiMU  Eng.  A  Coat.  Co.  «.  MeU..  193  N.Y.  148,85  N.E. 
1070.  '  Atkin  •.  Kanaaa.  191  U.S.  207,  24  Sup.  Ct.  124. 

•  Nev..  Acta  1905,  ch.  106.  •  Ark.,  Dig.  aee.  5383. 

•  Mont.,  AcU  1907.  eh.  144.  '  Mian.,  R.L..  me.  5090. 

•  MMi..  Aeta  1900.  eh.  514.  aae.  114.  •  Ind..  AA  we.  TOaSh. 
w  CbmaoBweaith    ttsty,  16S  Man.  117, 98  N.B.  1196. 


WAOBS  51 

in  accordance  with  the  terms  of  a  prior  agreement  or  contract, 
it  is  vaUd.»  With'n  the  purpose  of  this  cUss  of  laws  are  those 
that  prohibit  the  screening  of  coal  before  it  is  weighed,*  the  loss 
of  coal  through  the  screen  being  regarded  as  causing  an  uigust 
loss  to  the  miner  whose  contract  calls  for  payment  by  the  weight 
of  the  coal  mined.  Such  laws  have  been  held  to  be  constitutional, 
as  withm  the  police  power  of  the  state,'  though  the  contrary  view 
has  also  been  expressed,  the  laws  being  condemned  as  interfering 
unduly  with  the  right  to  contract  freely.* 

The  compulsory  remission  of  any  part  of  an  employee's  wages 
for  the  maintenance  of  hospitals,  Ubraries,  or  for  other  benefits 
or  social  purposes  is  prohibited  in  some  states.*  Though  it  is 
unlawf ulior  an  employer  thus  to  withhold  his  employee's  wages, 
he  is  not  by  that  fact  relie -ed  from  his  obligation  to  supply 
hospital  treatment,  according  to  his  contract,  to  an  iigurad 
employee  whose  wages  have  been  thus  retained.* 

Sicnoir  22.  Time  of  Payment.  —  The  time  of  payment  of 
wages  is  usually  fixed  by  the  contract  of  employment,  or  by 
custom,  which  is  in  effect  the  same  thing.  An  agreement  to  do 
a  piece  of  work,  or  to  work  for  a  stated  period,  for  a  certain  sum, 
no  time  of  payment  being  set,  is  construed  to  be  a  contract  to 
pay  only  when  the  labor  is  completed  or  the  contract  is  other- 
wise  terminated.'  If  monthly  payments  are  agreed  to, 


1  Galla^er  r.  Mfg.  Co.,  172  Maas.  230,  61  N.E.  1086. 

•  Ark  Act- 1905.  No.  219 ;  Colo..  A.S..  mc.  3204k ;  Iowa.  Code.  mo.  2490,  etc. 
'McLean  r.  State.  2H  U.S.  686. 29  Sup.  Ct  !I06 ;  SUte..  Ptd  Splint  Coal  Co.. 

86  W.  Va.  802, 18  S.E.  1000. 

•  Ramaey  •.  People.  142  111.  380,  32  N.E.  364 ;  /n  w  Houae  Bill  No.  203  21 
Colo.  27,  39  Pac.  431.  ««. 

•  Ind..  A.S.  MC.  2300;  Md..  P.G.L.  art.  23,  mo.  297;  Mich.,  CL  ««. 
11400. 11401.  •  WabMh  R.  Co.  f.  KeUey.  183  Ind.  119. 82  N.E.  162. 

*Tlu)a9wat.PlMiaa,3iNA8n;  Tlmpf.  WMte,18JdtBt.53(N.Y.). 


52 


LAW  OF  THE  EMPLOTMENT  OF  LABOR 


are  due  for  fiill  months  as  they  are  earned.  For  fractions  of 
a  month  no  recovery  of  wages  can  be  had  imless  luere  was  a 
wrongful  discharge,  when  the  employee  may  sue,  not  for  wages 
earned,  but  for  damages  caused  by  the  discharge.^  (See  sections 
8,  ) 

hiumerouB  statutes  have  been  enacted  regulating  1  ame  ol 
paymoit  of  wages,  some  legislatures  inesoibing  a  m  '.h  i  /  pay- 
day,* others  semi-monthly,*  bi-weddy,'  or  evon  week^  *  pay- 
days. These  laws  may  apply  to  all  employers  of  labor,  cor- 
porate or  individual,*  to  corporations  only,'  or  to  designated 
classes  of  employers,  as  operators  of  mines,"  mines  and  fac- 
tories,' or  to  employers  having  in  their  service  more  than  a 
designated  number  of  laborers.^" 

Courts  have  uphdd  the  oonstttutionality  of  a  law  that  applied 
only  to  designated  daans  of  tnuj^ayen,^  ox  to  o(np<»atfa»i 
only,"  as  well  as  a  law  of  gmend  app^ea^kmJ*  In  the  New 
York  case  cited,  thougji  the  law  uses  the  words,  "each  and 
every  employee,"  it  was  oonstoued  to  i^tply  only  to  manuiU 
laborers. 

I  Walah  t.  New  York  A  Ky.  Co.,  85  N.Y.  Supp.  88. 

*  Aris.,  Pen.  Code,  aeo.  616 ;  Va.,  Code,  mo.  3657d. 

*  Colo.,  Supp.,  sec.  2801ol  (except  railroads  which  muit  pay  montUy) ;  Iowa, 
Code,  aec.  2490 ;  Ky.,  SUt.,  mo.  2739A ;  Pa.,  B.P.Dic.  p.  2077. 

« Ind.,  A.S.  Me.  7065 ;  Me..  R.8.     40,  mo.  57 ;  N  J.,  Aeto  1809,  ^  88. 

*  Conn.,  G.S.  sec.  4695 ;  Kana.,  G.S.  sec.  1295  (other  than  railroad  and  farm* 
ing  corporations) ;  Mass.,  Acts  1909.  ch.  614,  aec.  112. 

*  Aria..  Maaa.  (praetieally  aU  bat  fana  labor).  N J.  (aame  aa  Maaa.). 

'  Colo.,  Conn.,  Kans.,  R.I.  *  Iowa,  Ky.,  Wyo. 

*  Ind.,  Pa.  (by  construction),  Va.  ■*  Me.,  Ky. 

i>  Hancock  «.  Yaden,  121Iod.  888, 88  NJS.  888 ;  Lawnaoaa.  Butlaiid  B.  Co» 
80  Vt.  370,  67  AU.  1091. 

H  SUte  V.  Browne  ft  Sharpe  Mfg.  Co..  18  R.1. 18. 8S  AtL  848 ;  Tmsim  t.  City 
of  Buffalo,  67  Hun  577, 11  N.  Y.  Supp.  314. 

u  Com.  c.  Dunn,  170  Maaa.  140, 49  N.E.  110. 


WAQS8 


53 


On  the  other  hand,  a  law  requiring  a  monthly  payday  was 
hdd  to  netriot  the  ocmstitutional  right  of  employers  and  em- 
I^qrees  to  oontnust  freely  as  to  the  tenns  and  times  of  pay- 
ment; >  though  it  was  said  in  a  veiy  reooit  case,  m  which  the 
constitutionality  of  a  law  requiring  railioads  to  pay  their  em- 
ployees semi-monthly  was  under  consideration,  that  the  state 
had  an  interest  in  the  welfare  of  its  citizens  which  would  be 
served  by  the  frequent  payment  of  wages  so  that  workmen 
receiving  small  wages  might  be  better  able  to  make  cash  pur- 
chases of  the  necessaries  of  life ;  and  that  the  workman  and  a 
corporate  employer  do  not  stand,  m  the  mattn  of  making  con- 
tracts, on  an  equal  footing,  so  that  the  state  might  properly  act 
in  the  manner  indicated  so  as  to  in  part  remove  the  existing 
inequality.*  In  another  state  a  Uw  requiring  weekly  pay- 
ments of  the  full  amount  of  wages  due  was  held  not  to  be  a 
valid  exercise  of  the  police  power,'  and  obviously  a  law  of  like 
tenor,  but  applj-iug  only  to  companies,  corporations,  and  as- 
sociations, and  not  to  individual  employers,  and  also  discrimi- 
nating between  manual  laborers  and  other  employees,  would  be 
found  unconstitutional  by  a  court  holding  such  views  of  the 
limits  of  the  poHoe  power/ 

Falling  within  the  purpose  of  the  l&yn  of  this  class  to  procure 
prompt  payment  of  wage  debts  are  laws  directing  that  the  wages 
earned  '-y  discharged  employees  shall  be  paid  them  at  the  time 
of  discharge  without  reference  to  the  date  of  the  customary  pay- 

« Johiuon  ».  Goodyear  Min.  Co.,  127  Cal.  4,  59  Pac.  304. 

»  New  York  CencnS  ,  R.  Co.  ».  WilluuM,  118  J  .  Y.  Supp.  788, 04  MiM. 
B^.  15 ;  aflrmed.  i  .  '^  . M  >■  lOS.  02  N.B.  404. 

•  RvubUc  Iron  A.  Co.  t.  SUte.  160  lad.  87»,  64  N JB.  1005 ;  BnMtvfito 
Coul  Co.  w.  People,  147  lu.  66,  S5  N.B.  «2. 

<  Tohdo,  •!«..  B.  Oo.  t.  Lo«  1 W  iBd.  Sl«.  83  N.B.  757. 


54         LAW  OF  TH3  EMPLOYMENT  OF  LABOR 

day.^  Some  of  these  kwa  make  the  same  providon  for  em- 
ployees voluntarily  leaving  service  as  for  those  discharged 

The  act  of  the  Oregon  legislature  to  this  effect  requires  three 
days'  notice  of  intention  to  leave,  and  excepts  strikers  from  the 
class  of  employees  benefited,  unless  the  regular  payday  falls 
more  than  thirty  days  after  the  occurrence  of  the  strike.  Laws 
of  this  class  are  constitutional,*  at  least  in  their  application  to 
corporatiors,  though  they  may  be  regarded  as  infringing  on  the 
constitutional  rights  of  persons.*  They  do  not  interfere  with 
the  employer's  right  to  claim  offsets  for  damages  caused  by  the 
employee's  failure  to  fulfill  his  contract/  A  penalty  of  an  added 
percentage,  or  of  the  continuance  of  wage-'  for  a  limited  time, 
where  the  employer  fails  to  comply  with  the  statute,  may  be 
provided  for ; »  a  penalty  may  also  be  allowed  for  the  deten- 
tion of  wages,  without  regard  to  the  termination  of  employ- 
ment;* this  provision  has  been  declared  valid,^  though  the 
contrary  has  been  held  on  the  ground  that  the  law  (toes  not 
protect  eqrally  the  interests  of  the  employer  and  the  employee.* 
In  order  to  recover  such  penalties  the  employee  must  comply 
strictly  with  any  prescribed  formalities,  as  nothing  will  bo 
taken  by  way  of  intendment  in  the  enforcement  of  penalizing 
provisions."  In  this  connection  may  be  mentioned  laws  that 

•Aril.,  Pen.  Code,  sec.  616;  Ark.,  Acts  1905,  No.  310;  Colo.,  A.8.  wo. 
aSOlql :  Oreg..  Aete  1007,  ch.  163 :  S.  C.  Civ.  Code,  sec.  2718. 

»  St.  Louis,  I.  M.  ft  S.  R.  Co. ».  Paul,  178  U.8. 404, 18  Sup.  Ct.  1042. 
»  Leep  V.  St.  Louis,  etc.,  R.  Co.,  58  Arlt.  407,  28  8.W.  78. 

*  Leep  «.  St.  Louia,  etc.,  R.  Co.,  tupra. 

•Ark..  Aets  1905.  No.  210;  Coio..  A.8.  see.  SSOlql. 

•  Ind..  A.S.  sec.  7068. 

» 8eele>  ville  Coal  Co. ».  McGlosson,  166  Ind.  561,  77  N.E.  1044. 

•  San  Antonio  A  A.  P.  R.  Co.  v.  Wilson,  4  Tenu  App.  565,  10  8.W.  010. 

*  St  Louis.  X.  M.  4  S.  B.  Co.  >.  MoCterkio.  88  Ark.  277. 114  B.W.  340. 


WAGES 


55 


require  the  paym^t  of  interest  oo  any  portion  of  the  wages 
retained  as  a  pledge  of  continued  and  satisfactory  service,* 
and  laws  prohibitug  entirely  such  retention.* 

Section  23.  Place  of  Payment.  —  One  state  has  a  law  legu^ 
lating  the  place  of  the  payment  of  wages,  payment  in  bar- 
rooms or  other  places  where  liquor  is  sold  being  prohibited;* 
while  another  allows  a  discharged  employee  of  a  railroad  com- 
pany to  designate  any  station  where  a  regular  agent  is  kept  as 
the  place  of  payment  of  the  wages  due  him  at  the  time ;  *  but 
this  matter  is  generally  left  to  the  determination  of  the  parties 
to  the  contract. 

SxcnoN  24.  AttackmenU,  CksmMmenta,  etc.  —  Demands  by 
an  employee's  creditors  cannot  be  met  by  the  employer's  pay- 
ment to  them  of  wages  earned,  unless  the  employee  has  made 
an  assignment  of  his  wages  in  this  particular  behalf,  unwarranted 
payments  by  the  employer  leaving  him  liable  to  the  employee 
himself  for  a  second  payment  of  the  wages.'  Garnishment  or 
othae  legal  proceedings  must  be  resorted  to  in  order  to  sequester 
a  debtor  employee's  earnings  against  his  will ;  and  in  every  state 
ol  the  Union  but  North  Carolma  statutory  restrictions  exist  as 
to  the  amounts  that  can  be  so  taken,  and  this  state  has  a  general 
exemption  provision  in  its  constitutioD ;  in  many  states  the 
restriction  applies  only  where  the  employee  has  dependents. 
These  statutes  may  declare  a  certain  percentage  of  the  debtor's 
wages  exempt,  or  they  may  provide  that  wages  for  a  certain 

'Lit.,  Acta  1808.  No.  31. 

*  III.,  R.S.  eh.  48,  sec.  16 :  Conn.,  Q.S.  aec.  4606. 

» Cal.,  Pen.  Code,  sec.  680.  *  Ark.,  Acta  1005,  eh.  210. 

•  Southern  R.  Co.  ».  Fulford,  128  G».  103.  M  fa.E.  C8 ;  Terre  Haute  4  I.  R. 
Co.  •.  Baker.  122  Ind.  433.  24  N.E.  83 ;  Crisp  ».  R.  Co.,  98  Mich.  651.  57  N.W. 
lOSO;  BttnMt.lfail«BdMlg.Co.,80MMh487. 


56 


LAW  OF  THE  EMPLOTMBNT  OF  LABOR 


period  or  (tf  a  certain  amount  cannot  be  taken  for  ddbt.  Hie 
statute  may  exempt  all  wages  in  the  hands  of  the  employer  from 
attachment  except  for  board  and  lodging  fm  a  qMoified  term,* 
or  all  current  wages.* 

Wages  improperly  in  the  hands  of  a  magistrate  through 
garnishment  may  be  recovered  by  a  rule  against  him.»  An 
employw  cannot  allow  wages  to  aooumolate  in  his  hands  un- 
til the  total  exceeds  the  exempted  amount  and  thus  defeat 
the  provisions  of  the  law/  nor  can  an  onployee  make  a  valid 
contract  waiving  his  exemption  rights.*   The  law  exempting 
wages  is  held  to  protect  from  attachment  also  any  property 
purchased  by  the  use  of  the  exempted  wages.*   Courts  differ 
on  the  question  as  to  whether  or  not  the  protection  af- 
forded by  exemption  laws  extends  to  non-residents.'  The 
matter  may  be  determined  by  statute,  as,  for  instance,  a  dec- 
luation  that  the  law  of  the  state  of  residence  shall  contrd.* 
Assigning  claims  to  non-residents  or  otherwise  taking  or  send- 
ing them  out  of  the  state  for  collection  in  ordu  to  avmd  k)cal 
exemption  laws  is  prohibited  by  the  statutes  of  a  numbw  <rf 
states,  and  a  law  of  this  sort  was  held  to  support  a  request 
for  an  injunction  against  a  creditor  prosecuting  his  suit  out- 
side the  state  against  a  garnishee  for  the  recovery  of  a  debt 
that  was  exempt  under  the  law  of  the  state  of  residence  of  both 

» Pa.,  B.  p.  Dig.  p.  2077,  seot.  26, 26 ;  Aota  1806,  No.  99. 

»  TeiH,  R.S.  Mca.  2395,  2897.  •  Cumm  t.  Fleming.  76  Ob.  98. 

•  Chftpman  t.  Berry,  73  Miss.  437,  18  So.  918. 

» Riehardaon  t.  Kaufman,  143  Ala.  243, 39  So.  368 ;  Oraen  ».  Watwm.  78  Oa. 
471. 

•  Aultman  ft  Taylor  Co.  t.  Smith,  119  8.W.  1178  (Ky.). 

» Cf.  Wright  t.  R.  Co.,  19  Nebr.  17S,  27  N.W.  90,  and  Lyon  f.  CaUopy.  87 
Iowa  567,  54  N.W,  476. 

•  S.  Dak..  JuaticM'  Code,  leo.  41. 


WAGES 


67 


debtor  and  creditor.'   The  debtor  was  also  held  to  be  entitled 
to  a  judgment  in  damages  against  the  creditor  for  the  amount  of 
wages  collected  by  him  in  violation  of  the  law.   In  another  case 
such  a  law  was  held  to  be  unconstitutional  on  the  ground  that 
it  diseriminated  between  wage  earners  and  other  debtors,  and 
betwem  creditors  residing  witim  the  state  and  those  residing 
outdde,  placing  the  former  at  a  disadvantage ;  idso  as  extend- 
ing the  exemption  laws  of  a  state  beyond  its  boundaries.'  The 
weight  of  opinion  seems  to  be,  however,  that  such  laws  are  con- 
stitutional,' and  that  where  the  law  prohibits  sending  claims  out 
of  the  state,  taking  them  is  a  violation  of  the  law.*   The  gar- 
nishee's action  may  be  in  good  faith  in  making  payments  that 
could  have  been  defended  if  there  had  heea  a  full  knowledge  of 
the  droumstances,  in  whtdi  case  the  debt  will  be  r^purded  as 
dischaqced  in  so  far  as  he  is  ooncmied,  the  liabifity  falling  upon 
the  wrongful  garnishor ; '  but  where  payment  is  not  ma^,  it 
may  still  be  held  that  the  foreign  judgment  is  within  the  juris- 
diction of  the  court  rendering  it,  but  the  payment  thereon  will 
be  subject  to  the  exemption  laws  of  the  state  of  residence  of  the 
debtor.* 

SicnoN  26.  Auignmenta  of  Wages.  —  Assignments  of  un- 
earned wages  are  safeguarded  in  various  ways,  as  by  the  require- 
vami  that  they  must  be  recorded,'  that  copies  must  be  filed  with 

« Main  fl.  Field,  13  Ind.  App.  401,  40  N.E.  1103 ;  Wilwn  ».  Joaephs.  107  Ind. 
490,  8  N.E.  616. 

*  In  rt  Flukea.  157  Mo.  125,  57  S.W.  646. 

•Sweeny*.  Hunter,  145  Pft.  St.S08,a3Atf.S58;  Singer  Mfg.  Co.  t.  Fleming 
80  Nebr.  679,  68  N.W.  226. 

*  Wilson  «.  Josephs,  tupra. 

*  Main  t.  Field,  tupro  .•  O'Connor  e.  Walter,  87  Nebr.  287, 55  N.W.  8S7. 

*  Sjiger  Mfg.  Co.  •.  FSeming,  supra. 

'  OoaBn  Acts  1906.  ch.  78 ;  lU.,  R.S.  oh.  10b,  eeo.  18,  etc. 


58 


LAW  OF  THE  KMPLOTMINT  OF  LABOR 


the  employer,*  or  even  that  his  ooneeDt  must  be  obtained,'  or 
that  the  wife  must  join  in  the  husband's  assignments,  or  vice 
veraa.*  Assignments  to  secure  loans  *  w  future  advanoes  ■  may 

be  declared  void,  or  aU  assignments  of  future  earnings  pro- 
bibited.*  This  latter  prohibition  was  declared  constitutional 
in  a  case  in  which  it  was  said  that  the  law  was  enacted  for  the 
protection  of  a  class  of  persons  who  are  in  large  numbers  depend- 
ent on  daily  or  weekly  wages  for  the  maintenance  of  themselves 
and  families,  and  whose  drcumstanoes  render  them  peculiarly 
liable  to  imposition  and  i^justioe.  The  law  was  approved  on 
this  ground,  and  as  auning  clearly  at  the  ''protection  of  wage 
earners  from  oppression,  extortion,  or  fraud  on  the  part  of 
others,  and  from  the  consequences  of  theur  own  weakness,  foUy, 
or  improvidence." ' 

The  language  of  the  court  in  this  case  can  hardly  commend 
itself  to  general  acceptance,  for  while  laws  of  the  same  general 
class  are  sustamed  by  the  highest  courts,  the  reasons  usually  of- 
fered do  not  convey  the  unpression  of  restraint  on  the  acts  of  the 
employee  on  account  of  his  incapacities  of  the  sort  designated. 
Indeed,  the  court  of  one  state  declared  a  law  prohibiting  the 
payment  of  wages  in  scrip,  even  at  the  employee's  option,  was 
"an  encroachment  upon  his  constitutional  rights,  and  an  ob- 
struction to  his  pursuit  of  happiness.  Such  taxi's  as  the  one 
under  consideration  classify  him  among  the  incompeten^^  and 
degrade  his  callbg."*  The  constitutionality  of  the  law  of 

« Maa.,  Aeta  1906,  eh.  390  ;  N.Y..  Acts  1904.  ch.  77. 

•  La..  Acta  1906,  No.  8 ;  :Minn.,  Acta  1905,  ch.  309 ;  Mass..  Acta  1908.  ch.  008. 
•Colo.,  Acta  1907,  ch.  240;  Iowa,  AcU  1906,  ch.  148;  Maaa.,  Acta  1908, 
•"^l       ,  'O»..Actal904.p.8«. 
Maaa..  Aeta  1806,  ch.  390.  •  ind..  A.S..  sec.  705Se. 

'  Int.  Textbook  Co.  ».  Weiaainger,  160  Ind.  349,  65  N.E.  521. 
•Btirtet.  BMta,  61  Kaoa.  146, 80  Fao.  840. 


WAOBS  59 

Maasachuaetts  requiring  the  recording  of  assignments  and 
their  prior  acceptance  by  the  employer,  as  well  as  the  joint 
«etkm  of  the  wife,  was  upheld  by  the  supreme  court  of  that 
atate  on  the  grouodi  that  it  kflsened  the  opportunity  for  dis- 
hooetty  <m  the  part  of  both  wage  earners  and  money  lenders, 
as  weU  as  tending  to  diminish  the  risk  of  Utigation  consequent 
on  the  refusal  of  an  employer  to  pay  the  assigned  wages.  It 
also  admitted  the  validity  of  a  distinction  between  assignments 
to  secure  loans  of  money  and  assignments  as  security  for  ne- 
cessities.  The  section  relating  to  the  wife's  joint  action  was 
held  to  be  of  less  certain  validity,  but  was  supported  as  within 
the  power  of  the  legislature,  which  "might  look  chiefly  to  the 
ordinary  reUtions  between  husband  and  wife  under  the  law, 
and  adopt  this  form  of  regulation  as  salutary  in  its  appUcation 
to  most  members  of  the  class  with  which  they  were  dealing." » 
The  business  of  dealing  in  assigned  wages  may  be  regubted 
by  prohibiting  discounts  in  excess  of  the  legal  rate  of  interest ;  * 
or  dealers  may  be  required  to  procure  a  license,  the  rate  of  in- 
twest  and  other  charges  be  limited,  all  calculations  required  to  be 
based  on  the  amount  actuaUy  advanced  by  the  broker,  or  other 
wstrietiona  made.'  An  ordmance  embodying  a  number  of 
these  regulations  was  deckred  constitutional  as  tending  to  pre- 
vent fraud  and  extortion     so  of  a  law  of  (Connecticut  limiting 
the  rate  of  interest;  •  while  in  Texas  a  statute  taxing  dealers  in 
assigned  wages*  was  decUred  unconstitutional  as  restraining 

« Mutual  Loan  Co.  ».  Martell.  200  Maa.  482. 88  N.E.  916. 
»  N.J.,  a.S.,  p.  2344 ;  Md..  Acts  of  1906.  ch.  399. 

'Colo..  Aeta  1909.  ch.  17;  Del..  Acta  1909.  ch.  233;  Ind..  Acta  1909.  ch.  34. 

„  ..  *  ^'"*'^''*'-C'*y<'' Cincinnati.  81  Oyo  St  142, 80  N.B.  125. 
•  State  •.Huriburt,  82  Conn.  232, 72  AtL  1079. 
•Afltil906.eh.lll. 


eo 


LAW  OF  TUB  EMPLOYMENT  OF  LABOR 


inedom  of  trade  and  dmying  equaUty  before  the  law;*  and  an 
Illinois  statute  applying  to  salaries  as  wdl  as  wages,  and  declar> 

ing  the  forfeiture  of  the  principal  where  the  interest  is  usurious,' 
was  for  these  reasons  declared  void/  restrictions  on  salaried 
employees  not  being  justified,  and  other  usurious  contracts  not 
being  dealt  with  in  so  drastic  a  manner. 

Section  26.  SuUa  for  Wages.  —  Suits  for  wages  are  specially 
provided  for  m  a  number  of  states,  as  by  allowing  a  successful 
claimant  an  additUmal  reoovwry  (or  attorn^'  fees ;  *  by  pro- 
hil»ting  a  stiqr  of  eanoutioi  where  the  judpomt  is  for  the  re- 
covery <rf  a  wage  debt ;  *  by  providmg  that  no  property  shall  be 
exonpt  from  execution  on  such  a  judgment ;  '  by  placing  suits 
for  wages  for  manual  labor  at  the  head  of  the  trial  docket ; '  by 
providing  that  two  or  more  wage  claimants  may  make  joint 
appeals ; '  or  by  prohibiting  the  allowaiice  of  setoffs  in  suits  for 
wages  except  for  money  actually  loaned  or  advanced,'  or  unless 
specifically  provided  for  in  writing.'" 

Courts  diffw  as  to  the  constitutionafity  of  laws  allowing  a 
successful  claimant  in  a  suit  for  wages  to  recover  also  an  attor> 
ney's  fee,  oomo  holding  sueh  laws  c(mstitutioaal,"  while  others 

«  Owens  t>.  State,  63  Tex.  Cr.  App.  105,  112  8.W.  1075. 

>  Act  of  May  13, 1906.  •  Maame  •.  Ceaana,  230  HI.  362,  88  N.E.  162. 

« Cal.,  Acta  1007,  eh.  51 ;  Idaho,  Code.  aee.  S721 ;  Dl.,  RJ9.  eh.  18.  aee.  IS; 
Ind.,  A.S.  aee.  7068. 

*Iowa,  Code,  see.  3096;  Mich.,  C.L.  aee.  901;  N.  Dak.,  Code,  aee.  8447; 
Ohio,  Gen.  Code,  aee.  10,403. 

•  lU.,  R.S.,  eh.  52.  aee.  16 ;  Minn..  Conat.  art  1.  aee.  12 ;  N.C.,  Rev.  1906.  aee. 
685 ;  Va.,  Code,  aee.  S6S0.  *  Fa..  B.  P.  Dig.,  p.  2073,  aee.  3. 

•  Pa.,  B.  Dig.,  p.  246,  aee.  54.  •  Wye,  R.8.,  aee.  3503. 
x  Ala.,  Code,  aee.  5858 ;  Wyo..  R.S.,  aeo.  2603. 

' »  Vocel  f.  Pekoe,  157  lU.  8S9. 42  N.E.  886 ;  Sedeyrflle OMd  Co.*.  MeGHoaaon, 
166  Ind.  661,  77  N.E.  1044 ;  Sehmoll  «.  Lucht,  106  Minn.  188,  118  N.W.  555; 
Singer  Mfg.  Co.  •.  Fleming,  39  Nebr.  679, 58  N.W.  226  (holding  that  the  giv- 
ing o(  go  ■ttonagr'a  fee  b  oaljr  eoapaaaatoiy,  aot  peaal). 


61 


condemn  them  as  giving  an  unequal  advantage  to  one  class  of 
suitors '  or  to  a  plaintiff  over  the  defendant.*  The  statute  of 
Cokmdo  on  this  subject  avoids  the  lattor  difficulty  by  allowing 
an  attorney's  fee  to  be  recovered  by  the  suooessful  party.* 

SicnoN  27.  Medumie^  Umu.  —  The  comnKm  law  gave  a 
lien  on  personal  property  benefited  by  the  labor  or  can  of  a 
person  to  whom  it  had  been  intrusted,  f<»  the  protection  of  the 
workman's  interests.*  This  right  has  been  extended  by  statute 
to  the  protection  of  laborers  and  mechanics  generally,  for  prac- 
tically every  sort  of  labor,  affecting  real  as  well  as  personal 
property,  and  laws  to  this  effect  are  to  be  found  on  the  statute 
books  of  evoy  state  and  territory.* 

In  order  to  secure  the  benefits  of  the  statutory  lien,  the  pro- 
visions of  the  law  need  be  only  substaatiaUy  mnnplied  with,  as 
such  laws  are  to  be  liberally  construed,*  and  whoe  the  vm- 
pliance  suffices  to  make  the  facts  certain,  errors  or  superfluities 
will  not  invalidate  the  lien.^  The  difficulty  of  enforcing  a  lien 
on  certain  classes  of  property,  and  the  desire  to  reach  the  party 
properly  chargeable  have  combmed  to  lead  to  the  enactment  of 

I  Manowsky  s.  Stephan,  233  111.  409,  84  NJB.  365  (■tstote  ««»<#»ihn|  iQ 
claimuta) ;  Johnaon  ».  Goodyear  Min.  Co.,  127  QJ.  4, 88  PJms.  304 ;  Atk^Moo  t . 
Woodmanam,  08  Kana.  71,  74  Pao.  640. 

•  Gulf.  etc..  R.  Co.  t.  EUis,  165  U.S.  150,  17  Sup  (^t.  255 ;  Davidson  a.  Jm. 
ning*.  27  Colo.  187,  60Pac.  354;  Randolph  ..  Supply  Co.,  106  Ala.  fiOl,  17 
*>•  •  Supp.  aee.  3801ttl. 

•  OakM  t.  Mocm,  24  Ma.  214. 41  An.  Dw.  879 ;  Moriu  t .  CongdiM,  4  N  T 
552. 

•  The  law  of  the  Dirtiiet  of  ColuaU%  81 UA  Stat.  1384.  ia  a  fair  type  of  laws 
of  this  daaa. 

•  Mining  Co.  t.  Cullina.  104  U.S.  176 ;  Hays  e.  Mercier.  22  Nebr.  656, 36  N.W. 
894;  TracUon  Co.  t.  Brennan  87  N.E.  215  (Ind.).  P«.  caii*a.  Natilmal  Hi* 
Proofing  Co.  t.  Huntington,  81  Conn.  632. 71  Ati.  911. 

*Hiiilqrt.Tttidnr.  113  N.  T.  Smv.  080. 


«2 


L4W  OF  THI  nfPLOTlflNT  OF  LABOR 


q)ecial  proviakms  of  kw  where  the  work  is  being  done  by  con- 
tnujton  000.  property  of  the  tort  indicated  Instead  of  making 
the  thing  worind  on  the  lubjeet  of  the  hen,  the  fund  from  wlaoh 
a  contractor  cm  pubUe  wwka  Is  to  be  paid  is  sid>j6eted  to  a  tten 

on  due  notice  to  proper  authorities,  in  a  few  states.'  The  «^wtf 
rule  may  }ye  applied  to  railroad  construction  and  repair.*  The 
law  may  also  put  upon  the  principal  the  duty  of  withholding 
payments  from  the  contractor  when  notified  of  a  lairarer's  claim 
thereon,  to  await  an  adjustment  of  claims.* 

SicnoM  28.  Bonek  to  Secure  Payment  of  Wagee.  —  Still  an- 
othor  fwm  (rf  protectimi  whieh  applies  most  frequmtly  to  labor 
on  public  works,*  though  in  a  few  states  to  nuhroad  mxk^*  and  in 
New  York  to  canal  ooostruction,'  is  one  that  requires  contractors, 
prior  to  the  commencement  of  their  work,  to  give  bond  for  the 
payment  of  such  claims  as  would,  under  other  conditions,  give 
rise  to  liens.  Such  laws  exist  in  a  score  of  iurisdictions.  Congress 
having  enacted  one  applicable  to  public  works  of  the  United 
States.'  Tlus  care  for  the  safeguarding  of  tiM  wages  of  em- 
ployees of  oontraottm  is  forthor  expressed  by  laws  compelling 
oontracthog  stevedores  to  be  Uoensed  by  piddio  authmity,  and 
to  give  bond ; '  by  requiring  the  recording  and  publication  of  the 
contract  m  other  conditions  under  which  oertaiD  undntakingB 

*  Colo.  Supp.,  Bees.  2888-2801 ;  Ind.,  Acta  1905,  ch.  124.  aec.  9 ;  N.Y.,  Con. 
L.,  ch.  33,  seca.  5,  12. 

'  Mich.,  C.  L.,  Mct.  5243-«24fi ;  Mo.,  R.  8..  mc  1067 

*  MiM..  Code,  Me.  8074;  OUo,  Oen.  Co<h,  Me.  8836. 

«Iiid..  A.S.  seca.  4300b,  4300e,  8602,  860S;  Mieb.,  Aeto  1005,  No.  187; 
Waah.,  Code,  sect.  5925-5927. 

•  Conn.,  0.&  MO.  8606;  Me.,  IL&  eh.  51,  Me. 47;  Mian.,  BX.,  mos.  3910. 
2020. 

•  Con.  L.,  eh.  5,  Me.  145.  » 28  Stat.  278  ;  33  Stat.  811. 
•Md.,  Aeto  1808,  eh.  805:  N.C.,  Bot.  1905,  lee.  2060. 


WAGES  03 

•re  carried  on ; »  or  by  making  the  failure  of  a  contraetor  to  pay 
wages  due  out  of  current  receipts  under  the  contract  a  misde- 
meanor,* or  a  felony,*  though  tliis  latter  law  applies  only  to 
hbor  on  public  works.  Laws  of  this  class  come  within  the 
n$aon  of  lien  lawi,  and  have  generally  received  a  liberal  con- 
•truetkm,  wHh  a  view  to  effectuating  their  purpose  to  require 
p^rmcnt  for  labor  and  materials  from  thoee  who  profit  by  their 
use* 


Sbction  29.  Liability  of  Stockholden  <4  CorponUoiu.  —  The 
earnings  of  employees  of  corporations  are  protected  in  several 
states  by  statutes  that  make  individual  stockholders,  either  in 
dengnated  classes  of  c  porations,*  or  in  business  corporations 
■noally,*  liable  for  wage  debts  due  employees. 

Smtion  30.  Prtfmwietqf  Wage  Claim.  —  Of  afanost  equal 
universality  with  the  lien  laws  aro  lama  making  wages  piefemd 
claims  in  the  settlement  of  the  estates  of  deceased  emptoyen 
and  in  cases  of  bai  kruptcy,  assignments,  exf  <  .  .>as,  etc'  Such 
laws  are  constitutioi.al,*  and  apply  to  all  wages  c  at  the  time, 
whether  the  claimant  has  left  service  or  not.»  They  are  vari- 
ously interpreted,  some  courts  holding  that  thoy  jhould  be 
■trictly  ooDstrued,  and  that  th^  are  for  the  benefit  of  manual 

;  ct?^P^rjjr"  "^^^  '      -      Code.  "0. 388. 

•  Ual.,  Fen.  Code,  see.  653d. 

« HOI ».  Amoieu  Surety  Co..  200  U.S.  197.  26  Sup.  Ct  168 

lodUlt*  tL.""^  '^'C^Bwr. 

iy^T4^^^        ch.  437.       33;  Mich..  CW.  »c  7;  B.P. 

»MMfc.R.8.,oh.  142.aec  1;  ch.  163.  sec.  118;  N.Y..  Con.  L  eh.  12 
;  ««.  Comp.  St..  p.  3447.«».M. " 

N.E.^         e.  Ttert.,.  io«  N.Y.         BaM,.  Eunmrn,  156  lad.  556.  60 

•  In  n  Baott.  148  N.Y.  658. 42  N.E.  1079. 


64 


LAW  OF  THB  EMPLOYMENT  OF  LABOR 


labwen  only;!  while  othera  rule  that  th«y  should  receive  a 

"fair  and  liberal  construction,"  *  and  that  they  are  applicable 
in  the  case  of  a  superintendent  of  laborers,*  or  of  bookkeepers 
and  salesmen,  under  a  law  using  the  term  "employees."  * 
Such  a  law  cannot  be  availed  of  by  an  official  of  a  corporation 
advancing  wages  due  its  employees ; »  nor,  it  has  been  held,  by 
an  assignee  of  a  wage  debt  *  though  the  contrary  has  been  held,' 
and  it  is  not  clear  why  the  rule  in  this  case  should  diffor  from 
that  in  others  mvolving  like  conditions.'  The  claim  given  has 
been  held  not  to  amount  to  a  lien,*  thou{^  here  again  other  courts 
have  viewed  the  law  differently ;  and  it  seems  a  wise  provision 
of  statute  to  declare  the  status  of  such  a  claim. "  Where  the  view 
is  held  that  the  claim  does  not  rank  with  a  lien,  it  will  follow 
that  perfected  lien  claims  take  precedence  over  wage  claims  of 
other  forms ; "  though  a  prior  mortgage  ranks  below  the  claim 
given  by  such  a  statute,"  and  to  hold  otherwise  would  give 
a  lender  gratuitously  the  benefit  of  the  labor  which  goes  into 
the  im^terty  and  gives  it  its  existence  tad  value. 
Sbction  31.  Payment  o/  Waget  in  Scrip,  etc.  —  Many  states 

'  People  ».  Remington,  45  Hun  329  (N.Y.) ;  Raynes  r.  Kokomo  Ladder,  etc. 
Co.,  153  Ind.  315,  54  N.E.  1061 ;  Johnrton  t.  Barrilla.  27  Ore.  256, 41  Pm.  OSS. 

*  Bui  f.  DoennMio,  112  Ind.  390,  IS  N.E.  377. 

•  Pendergaut  ».  Yanders.  12,  Ind.  159,  24  N.E.  724. 

*  Palmer  «.  Van  Santvoord,  153  N.Y.  612,  47  N.E.  915. 

•  Suddath  «.  Gallaher,  128  Mo.  398.  28  S.W.  880. 

*  People    Remington,  tupra. 

'  Faloonio  v.  Larsen,  31  Oreg.  137,  48  Pac.  703 ;  Union  Trust  Co.  •.  Southern 
Sawmilla  &  Lumber  Co.,  166  Fed.  193.      •  White  r.  Stulasr,  89  OUo  St.  42S. 

•  Winrod  «.  Walter*,  141  Cal.  399, 74  Pac.  1037. 

>•  Coe  t.  R.  Co.,  4  Stew.  (31  N.J.  Eq.)  129 ;  /n  n  Slomln.  117  Fed.  888. 

"  N.J.,  /Lcta  1896,  ch.  185,  sec.  83.    (Declares  claim  sliHi.) 
^Inre  Kirby-Dennis  Co.,  95  Fed.  116  (C.C.A.). 

xfieU  ff.  Hiner,  18  Ind.  App.  184, 44  N.E.  878;  LitMabert  t.  ThutCo.,  8 
UtidilS,28FM.871:  Bigrad(fat.BlMdi.»llM»»l,58N.W.m 


WAGES 


65 


have  lawB  regulating  the  payment  of  wages  with  xespeot  to  the 
medium  of  payment.  Payment  in  scrip,  tokens,  store  orders, 
or  non-negotiable  paper  is  in  general  prohibited  by  the  laws  of 
this  class.*  These  laws  take  a  variety  of  forms,  and  have  been 
the  subject  of  much  litigation  in  disputes  as  to  their  constitu- 
tionality, and  on  this  point  the  courts  do  not  agree.   It  has  been 
held  that  it  was  a  violation  of  such  a  law  to  issue  by  agreement 
an  order  for  merchandise;*  and  that  an  employee  accepting 
scrip  issued  m  violation  of  the  Uwhad  no  right  of  action  to  recover 
its  face  value,  and  could  convey  none  to  an  assignee.*  The  laborer 
did  not  forfeit  his  right  to  wages,  however,  by  the  acceptance  of 
the  checks,  though  they  were  of  no  value  to  him  evea  as  evi- 
dence ;  but  he  might  sue,  as  might  his  assignor  ui  a  proper  case, 
in  an  action  for  work  and  labor  performed,  and  recover  a  quantum 
meruit.*   A  statute  requiring  all  wage  earners  to  be  paid  in 
lawful  money  has  been  held  not  to  be  violated  by  the  issue  be- 
tween paydays  of  checks  for  merchandise  at  the  company's 
store,  monthly  balances  being  paid  in  cash,  but  no  unused  checks 
being  redeemed ;  •  and  a  law  prohibiting  the  issue  of  non-trans- 
ferable scrip,  and  requiring  the  redemption  of  all  scrip  at  its 
"  face  value  "  in  the  hands  of  the  holder,  was  said  not  to  authorise 
an  assignee  of  scrip  payable  in  merchandise  to  demand  payment 
in  money .«   A  law  that  is  unique  in  the  method  proposed  for 
discouraging  the  use  of  scrip  is  one  that  levies  a  tax  of  twenty-five 

« 111..  R.S.,  ch.  98,  sec.  18;  Ga..  Civ.  Code,  no.  1871 ;  Ind..  A.S..  Me.  7060: 
Act.  1903.  oh.  171 :  NJ.,  as.,  p.  2343 ;  N.Y..  Con.  L..  ch.  31.  sec.  10. 
»  Cumberisnd  Olaas  Mfg.  Co.  ».  State.  68  N.J.L.  224.  33  AU.  210. 

•  Naglebaugh  r.  Mining  Co.,  21  Ind.  Ak>.  Ml,  51  N.E.  427. 

•  Naglebaugh  v.  Mining  Co..  tupn. 

» Avent  BeattyviUe  Cod  Co.  t.  Com..  90  Ky.  218,  28  S.W.  802. 

•  Maninw  «.  Bopn  Co.,  112  N.C.  164. 16  8.E.  806. 

w 


66 


LAW  OF  THE  EMPLOYMENT  OF  LABOR 


per  cent  on  all  tcrip,  ooupona,  m  orders  iBsued  in  payment  tm 

wages  and  not  redeemed  in  money  within  thirty  days  after  the 
date  of  such  issue.'  Laws  that  prohibit  the  payment  of  wages 
in  merchandise,  orders,  etc.,  are  obvious  and  direct  interferences 
with  the  freedom  of  contract,  but  a  law  to  this  effect  was  en- 
forced in  New  Jersey.*  A  law  requiring  employers  to  redeem 
in  cadi  at  their  faoe  valtw  all  coupons,  scrip,  or  orders  issued 
by  than  in  payment  of  wages  has  heea  held  oimstitutiraal,* 
and  is  equally  binding  cm  foreign  corp<Hnitions  as  on  those  formed 
within  the  state ;  *  but  a  penal  provision  authorizing  impriscm- 
ment  for  failure  to  redeem  is  unconstitutional,  as  such  action 
would  amount  to  imprisonment  for  debt.'  An  assignee's  rights 
are  the  same  as  those  of  the  original  holder,  and  no  inquiry  can 
be  raised  as  to  the  amount  actually  paid  by  the  assignee  for 
his  daim.* 

On  the  other  hand  is  the  ruling  that  a  jmnridon  that  wapa 
Migr  be  paid  only  in  lawful  mon^  interferes  with  the  ri|^t  if 
contract,  and  is  void;^  so  of  a  law  that  prohibits  the  ismh  of 

orders,  etc.,  unless  negotiable  and  redeemable  at  their  face 
value  in  lawful  money.*  Laws  aiq;ilying  <mly  to  -I'ling  and 

•  Pa.,  B.  Dig.  p.  874. 

•  Cumberland  GIem  Mfg.  Co.  t.  State,  68  N.J.L.  224,  33  Atl.  210. 

»  Knoxville  Iron  Co.  v.  Harbison,  183  U.S.  13,  22  Sup.  Ct.  1 ;  Johnaoa.  Lytto 
A  Co  V.  Spartan  Mills,  68  S.C.  339,  47  S.E.  695 ;  Union  Sawmill  Co.  a.  NmbIImI. 
84  Ark.  4»4, 108  S.W.  217 ;  ShortaU  •.  Bridfe,  etc..  Co..  45  WaA.  m  It  Ite. 
SIS :  Peel  Spi&it  Coid  Co.    State,  SS  W.  Va.  802,  18  S.E.  1000. 

•  Dayton  Coal  Sc  I.  Co.  ».  Barton,  183  U.S.  23.  22  Sup.  Ct.  5. 

•  State  <i.  Paint  Rock  Coal  &  Coke  Co.,  8  Pickle  (Tena.)  81,  20  S.W.  490. 

•  Harbison  •.  Iroa  Co..  108  Teu.  481, 88  B.W.  tiS. 

'  Godcharies  «.  Wigeman.  113  Pa.  St.  431,  6  Atl.  354 ;  Jordan  ».  State.  «1  Tex. 
Cr.  App.  531. 103  S.W.  633 ,  KelleyviUe  Coal  Co.  t.  Harrier,  207  111.  024. 60  N  E. 
•27. 

•  State  t.  MiMOuri  Tie,  etc.  Coh  181  lie.  MS.  M  S-W.  8M. 


WAOBS 


67 


manufaoturiog  conqNuaies  have  been  declared  unconstitutional, 
speeUI  and  diseriminatory ; «  so  of  one  exempting  farm  labor 
from  its  provi8ion8,>  or  one  applicable  to  corporations  only.' 

aor'^^s  w  p-  ""r^?'.'"  "»  Mo. 

W7,  22  8.  W.  350 ;  Dixon  ».  Poe.  1S9  lad.  ^  «S  N.B.  518. 
*  KeUeyviUe  Coal  Co.    Harrier,  aupn. 

-I^!!!ll5r'*l.^**''~^"°-  "i-Pe'»«P-of«ifficientimport- 
■^to  aotfee  here  the  stetus  of  corporations  in  respect  of  restriotiva  lecUation 

.  ^I!  '^"-^'^  -  di«a6trically  oppodte  vi«r.  «»m  to  be 

«t«tamed  bythecourt.ofdiirer«itrtat.,.  Thu.  in  the  Haan  caae.  corpora- 
tioM  H.  .aid  to  be  pemrn.  within  the  guarantee  of  the  fourteenth  amendment 

?!o  rx^*  ^"^^         Clara  Co.    Southern  P.  B.  Cc 

18  U.S.  M4. 6  Sup.  Ct.  1 132 ;  Pembina  Min..  etc..  Co. P*uJ^,m 

181.  88«p  Ct.  737)  and  entiUed  to  protection  arunet  uoTXcrimliulL 
^  VT  f*"'  declared  a  law  unconatitutional  that  dia- 

■liiteated  aiaiDst  corporations  as  compared  with  other  employer.  (Johana  a. 
Ooodyaar  Min.  Co..  127  Cal.  4.  69  Pac.  304 ;  Toledo,  etc..  R.  Co.  Long  169 
Indjie.  82  N.E.  767 ;  O'ConadI  Lumber  Co..  113  Mich.  124.  71  N  W  449 
Bartia.  ..  Iron  Co.,  103  Tenn.  421. 63  8.W.  966 ;  Sante  Clara  Co.  Southeni 
r.  R.  Co.,  mtpra) ;  while  the  supreme  court  of  Arkanua  held  that  while  the  Uw 
fovemmg  the  payment  of  w  «o  dm^hnrmA  «a|rim  might  be  iavaUd  a.  to 
tadi^u^  «aptoyei^  rt  was  ne^heless  valid  as  to  corporations  (Leep  R. 

H  Aft.  «7. 35  i.W.  76) :  and  on  the  point  being  submitted  by  the  legidik- 
WW*otte  H^reme  court  of  Rhode  Wand,  a  law  limiting  the  hoon of  litbor  of 

Bmia       tfci  tm m9lM  to eorpoiaUnM.    (T«i  Hour  Law.  24  R.I.  603. 64  AU. 

pi.li'^rf**  ^  *»»         of  ArkauM.  and 

ail'/af  ^  ^  Coun  of  the  United 

SUto.  (8ta«iri^LiI.  *  S  R.  Co.  ..  Paul.  178  U.S.  404,19  Sup.  Ct.  419;  Ham- 
moad  FMgCo. ..  SUte.  212  U.S.  322. 29  Sup.  Ct.  370)  wa.  e«pre«ly  baaKl  oa 

thectyur«i  of  th..tato.  Tlu.  vi«r  wa.  uk^  ^  tor  the  rea«>n  as«gned,  in 
«i«  wflread  aad  other  corporations  to  pay  their  em- 

uZ'^J'     '  ^^'"''ence  e.  Rutland  R.  Co..  80  Vt.  370.67  AtL 

r^-^Z^         —  "  «>^ed  powers  over  corporate  bodiM.  or  ia  the  viewa 
T?*"**"      *»««>d  just  implication  of  meh  rmUnt  poww 
fa  BO  wawmbl.  qinatioa  that  eotpota. 


68 


LAW  OF  THE  EMPLOYMENT  OF  LABOR 


In  the  last  named  case  it  was  also  held  thai  a  provision  exempt- 
ing corporations  employing  fewer  than  ten  men  waa  dtteriinina> 
tory  and  would  of  itself  invalidate  the  law.' 

A  case  in  which  the  law  was  declared  valid,  but  was,  by  con- 
rtruotion,  apparently  largely  deprived  of  its  intended  force,  was 
om  in  which  the  statute  requiring  oertun  corporations  to  pay 
their  employees  only  in  cadk  was  held  not  to  prevent  employees 
from  drawing  orders  on  their  onployers  in  favor  of  merchants 
from  whom  they  had  purchased  goods,  the  amounts  of  such 
orders  to  be  deducted  from  the  wages  due  the  employees  draw- 
mg  the  same.*  The  effect  and  practical  working  of  such  a 

tloM  an  pcnona  in  the  eye  of  the  law,  with  such  capacities  as  the  law  creat- 
ing them  bestows.    The  view  would  not  seem  to  be  an  unreasonable  one,  how- 
ever, that  was  taken  in  a  recent  case,  that  the  natura  of  a  eorpomtion  as  a  creature 
~  »  <»ly  by  •  ■ort  of  legal  fictioo,  —  and  incapable  of  subjection 

to  ontafa  pmalties,  as  imprisonmento,  warrants  different  forms  of  punishment  in 
case  of  violations  of  the  law  than  are  provided  against  individuals  guilty  of  like 
offenses  (SUte  ».  Standard  OU  Co.,  218  Mo.  1. 116  S.W.  902) ;  and  if  discrim- 
inatioMol  tUa  sort  an  thus  Joalttabla.  H  b  not  difleoH  to  realise  that  a  like 
COUIM  of  reasoning  will  lead  to  corresponding  rulings  where  other  phases  of 
corporate  and  individual  rights  and  remedies  are  the  subject  of  consideration,  the 
wider  scope  of  the  power  which  the  stote  poMSMa  ov«r  owpcmtioBa  and  J<^t 
■took  BSBoeiations  in  and  of  itself  affording  a  ground  for  distinctiotti  brtman 
th«n  and  individuals.    (Hammond  Packing  Co.  v.  SUte,  »ttpro.) 

Certain  distinctions  hold  between  corporations  and  individuals  because  of  the 
fact  that  although  persons,  and  thus  entitied  to  an  equaUty  of  protection  and  the 
right  not  to  be  deprived  of  their  property  without  due  process  of  law,  under  the 
provisions  of  the  fourteenth  amendment,  corporations  are  not  citixens,  entitled 
to  all  the  privileges  and  immunities  of  citisens  in  the  several  stetes.  under  the 
provisions  of  Article  4,  section  2,  dause  1,  of  the  Constitutten,  or  of  the  fourteenth 
amendment  thereto;  since  the  term,  "citisens"  "applies only  to  natural  persons, 
members  of  the  body  politic  owing  allegiance  to  the  state,  not  to  artificial  per- 
sons created  by  the  legislature,  and  possessing  only  such  attributes  as  the  legte- 
lature  has  prescribed."  (Pembina  Min.  Co.  v.  Pennayivania,  ««ra;  OriMtt 
Ins.  Co.  t.  Daggs,  172  U.S.  857.  19  Sup.  Ct.  281.) 

"  See  also  Union  Sawmill  Co.  ».  Felsenthal,  ntpn. 

*  Shaffer  •.  Union  Min.  Co.,  55  Md.  74. 


WA0B8 


69 


method  would  differ  in  no  respect  from  the  issue  of  orders  by 
the  employer,  to  be  presented  by  the  workman  in  payment  for 
goods  to  be  purchased. 

Diveise  ralings  are  found  as  to  the  status  of  the  tokens  in  com- 
mon use  where  payments  in  other  than  lawful  money  are  al- 
lowed. Thiis  it  is  said  that  they  possess  none  of  the  essential 
qualitica  of  a  negotiable  instrument  payable  to  the  bearer,  and 
that  mere  possession  raises  no  presumption  as  to  rights ;» 
while  on  the  other  hand  they  have  been  heK<  to  be  promises  i'n 
writing  to  pay,  and  the  party  issuing  them  was  not  allowed  to 
be  heard  to  oppose  the  legal  presumption  that  they  were  based 
on  a  valuable  consideration,*  a  conclusion  that  appears  to  be 
well  founded  as  against  a  eorporation  issuing  tokens  stamped 
with  a  mark  apparently  intended  to  mdicate  value,  and  issued 
by  it  in  adjustment  of  its  affairs  with  others. 

Section  32.  Company  Stores.  -  Within  the  meaning  of  the 
laws  regulating  the  medium  of  payment  of  ages,  and  subject 
to  the  same  rules  of  construction,  are  laws  regulating  the  opera- 
tion of  what  are  known  as  company  stores.  Such  stores  may 
be  prohibited,'  or  they  may  merely  be  forbidden  to  charge  any 
higher  price  for  goods  sold  to  employees  than  that  charged  for 
goods  sold  to  other  customers  for  cash.«  Some  of  these  laws 
relate  only  to  designated  classes  of  employ«s,  and  would  seem 
to  fall  under  the  strictures  of  the  fourteenth  amendment  of  the 
Federal  Constitution  as  to  uniformity  and  equality  of  legislation  • 
and  such  has  been  the  view  taken  by  some  of  the  state  court^ 

« Attoyac  RivOT  Lumber  Co.  t.  Pjiyne,  laa  8  W  278  rT«,  nt  *  v 
;  K«tucWy  Coal  Mini..  Co.  "  mKy.  52S       Sj"  1^' 

^o.  Supp..  .e.  2801f  1 ;  Pa..  B.  P.  Di».  p.  i^. 
*l^.AA,m.mi;  OWo.G«.Cod,.-.«946;  Va..  Code.  .ec.  3667d. 


70 


LAW  OF  THE  EMPLOYMENT  OF  LABOR 


ofluti«mrt.>  In  the  West  Viiginis  ease  dted,  the  court  also 
denounced  the  law  as  aa  "insulting  attonpt  to  put  the  laborer 

under  legislative  tutelage." 

Section  33.  Freedom  of  Employees  as  Traders,  etc.  —  Laws 
directed  to  the  subject  of  freedom  in  the  choice  of  stores  or  places 
for  trading  come  within  the  same  class  of  laws  with  the  above, 
and  are  found  in  connection  therewith,  their  intention  being,  as 
set  (orih  in  the  ojnnioD  in  a  case  involving  the  constitutionaUty 
of  the  statute,*  to  correct  the  abuse  practiced  on  workmok  "by 
forcing  them,  directly  or  indirectly,  into  dealic^  with  the  'com- 
pany stores,'  where  goods  at  exorbitant  prices  were  paid  for 
wages  instead  of  money."  In  this  case  a  statute  was  upheld 
that  is  restricted  in  its  application  to  mines  operating  with  ten 
or  more  employees,'  the  court  holding  that  the  statute  was  au- 
thorised by  the  state  constitution,  which  requires  the  payment  of 
wages  IB  lawful  money ;  and  that  the  discrimination  as  to  mines 
«npIoying  ten  or  more  persons  was  not  offensive,  since  m  cases 
where  a  smaller  number  was  employed,  the  evU  aimed  at  could 
hardly  be  practiced.  Laws  of  this  description  are  found  in  a 
number  of  states,*  while  in  a  few,  restrictions  in  the  choice  of 
boarding  houses  are  similarly  forbidden.*  The  constitutionality 
of  this  class  of  laws  is  generally  sustained,'  though  apart  from 

■  Frorer  v.  People.  141  lU.  171.31  N  E.  396;  Luman  Hitchena  Broa.  Coal 
Co..  00  Md.  14. 44  Atl.  1051 ;  State  ».  Kre  Creek  Coal  4  Coke  Co..  33  W.  Va 
188,  10  S.E.  288. 

»  CommoDwealth  r.  HUlaide  Coal  Co..  22  Ky.  L.  R.  669,  68  8.W.  441. 

•  Ky.,  SUt.,  Bee.  2739A. 

«Colo..  Supp.,  aec.  2801f  1 ;  Ind..  A.S..  ne.  7073;  Ohfc>,  Gen.  Code,  aee. 
12944 ;  Waah..  C.  ft  8..  aec.  3306.  etc. 

•  Mont..  Acta  1903.  ch.  102 ;  Nev.,  Aeta  1009.  ch.  124;  Owf.,  Aota  1907.  ch. 
192;  Utah,  C.L..  aec.  4487x26. 

•  ShortaU  t.  Bridae,  ete.,  Co.,  45  Wadi.  290. 88  Pao.  212 ;  Ptal  SpUnt  Coal  Co 
t.  State,  36  W.  Va.  803. 15  S.E.  1000. 


WAGES  71 

legislation  to  tlie  contrary,  it  has  been  held  that  an  employer  may 
lawfully  require  his  employees  to  refrain  from  trading  or  other- 
wiae  dealing  with  a  designated  person,  on  the  ground  that  he  has 
the  right  to  make  the  terms  of  his  contract  such  as  he  chooses,  if 
not  illegal,  and,  if  accepted  by  the  employee,  they  are  binding 
upon  him,  and  a  third  poson  has  no  right  to  interfere  therewith.* 
This  accords  with  the  principle  laid  down  in  a  leading  case' 
that  an  employee  is  free  to  work  or  refuse  to  work,  at  his  option, 
the  right  of  making  terms  resting  with  the  contracting  parties, 
who  may  refuse  as  between  themselves  to  deal  with  any 
designated  person  or  persons,  or  may  accept  such  a  condition 
laid  down  by  either  party.   This  is  clearly  the  recognized  prin- 
eiple  of  freedom  of  contract,  and  where  bwfully  exercised  the 
question  of  motive  cannot  be  raised,  since  maUoe  cannot  make 
that  iUegal  which  is  in  itself  legal.'  WhUe  the  enforcement  of 
such  a  restriction  by  an  employer  does  not  involve  the  element 
of  conspiracy,  its  likeness  to  the  boycott,  as  usually  enforced  by 
the  mutual  agreement  of  several,  has  been  pointed  out ;  and  it  is 
Ukewise  clear  that  if  employers  may  so  dictate  as  to  trade,  etc., 
the  employee  may  reciprocally  dictate  as  to  employment,  s<i 
that  the  dosed  shop,  so^ed,  comes  within  the  same  principle. 
The  statutes  above  dted  relate  to  the  employees'  rights  only, 
and  do  not  assum*!  to  confer  upon  any  merchant  or  other  person 
injured  by  a  ^•iolation  thereof  the  right  to  sue  for  damages  oc 
casioned  by  a  violation.   Apart  from  statute,  however,  it  has 
been  hdd  that  an  employer  is  Uable  for  damages  to  an  injured 

507. 49  Am.  Rep.  666.    (See  strong  diwentin.  opinion  ia  this  cMe  ) 
iJZ:^::^^.'''''-'''''^'-  ««-«>C^-.B«»h«ford.l06M«. 
*  JmUm  t.  Fowltr,  M  Fma.  806. 


72 


LAW  or  THB  niFLOTlClNT  OV  LABOR 


third  party  whom  m  a  men  matter  of  personal  preference,  or 
the  eqyremoo  <d  a  qmit  of  maliee  or  revenge,  and  not  ftom 
the  aetaal  mteretto  of  Ua  btirinew,  he  to  require  hia 

employees  not  to  patrmiae  certain  marahanta  or  hotel  keepers.* 

This  view  is  directly  opposed  to  that  held  in  the  Heywood  and 
Payne  cases  cited  above ;  and  while  it  may  not  accord  with  the 
abstract  legal  principle  of  freedom  of  contract,  the  economic 
fact  that  operates  in  determining  the  action  of  legislatures  m  the 
enaotoMttt  of  laws  undertaking  to  place  the  employee  on  a  foot- 
ing by  stetote  that  he  ia  unable  to  secure  unaided,  would  seem 
to  favw  the  pn^bition  of  muk  restoietive  contracts  as  seek  to 
control  the  liberty  of  the  onployee  in  the  spoiding  of  his  earn- 
ings, since  to  permit  the  contrary  offers  too  great  opportunity 
tor  oppression  and  extortion  of  the  employee  himself,  regardless 
of  the  effect  on  third  f>ersons. 

Freedom  in  the  selection  of  the  family  physician  is  protected 
by  a  statute  of  Tennessee,*  which  also  prohibits  the  retention 
of  any  part  of  an  employee's  wages,  without  his  full  consent,  for 
the  avowed  purpose  of  paying  the  salary  of  a  company  doctor; 
while  another  state  forbids  employers  to  require  the  t*lring  ©ut 
of  accident  insurance  with  any  specified  company.'  This 
statute  was  not  intended,  however,  to  interfere  with  the  organiza- 
tion of  relief  funds  which  employees  may  voluntarily  join,  and 
for  which  the  employer  may  withhold  the  agreed  contribution 
of  the  employee  from  his  wages. 

>  RaUway  Co.  ».  Qnenwood.  2  Texas  Civ.  App.  78, 21 8.W.  650 ;  Hanehett  t. 
Chiatovioh.  101  Fed.  742  (CCjL).  See  alao  diMentinc  opinion  in  the  Payne 
caae,  mtpra. 

*  Code,  aeea.  8879.  688a  « Mich..  C.L..  aecs.  8684-8886. 


CHAPTER  m 


B0UB8  or  LABOB 


Swjuon  34.  ReguUOion  of  Hours  of  Labor.  —  The  common 
law  attempted  no  definition  of  the  length  of  a  day's  labor,  that 
being  a  matter  to  be  determined  either  by  the  parUee  to  the  con- 
tract of  hiring  or  by  the  custom  of  the  trade  or  kwaUty.  Courts 
will,  however,  look  into  the  facts  in  any  given  case  to  determme 
what  was  reasonable  in  the  circumstances.*  Pay  for  overtime 
is  not  favored,  in  the  absence  of  particular  stipulations,  as 
iervices  rendered  under  a  contract  are  supposed  to  be  covered 
thereby.'  So  if  some  time  is  lost  by  the  workman,  and  the 
employer  permits  it  without  remonstrance,  he  cannot  after- 
wards withhold  payment.* 

Unless  the  nature  of  the  employment  or  an  express  oantmet 
forbids,  the  employee's  time  outside  of  his  houn  of  service 
be  occupied  in  work  for  others  if  such  work  is  not  incompatible 
with  his  duty  to  his  employer.*  But  engaging  in  work  that 
leads  to  a  conflict  of  interests  wiU  not  be  sanctioned.'  This 
does  not  prevent  an  employee  from  perfectmg  patents  and  re- 

» Luake  ».  Hotchkias,  37  Conn.  216,  g  Am.  Rep  314 
«  Guthrie  ».  Merrill.  4  Kans.  187 ;  VS.  «.  Mvtiii.  04  tT  fl  Ann . 
P»P«r  Co..  ge  Me.  220,  52  Atl.  065.  '  ^^^^  »• 

•  Wflley  t.  Warden,  27  Vt.  685. 

J         »  Bancroft.  139  Cal.  78,  TOPfce.  1017;  HfltabwoNat  Buik  . 
7  N.  Dak.  400.  76  N.W.  781.  ™«owo  «•».  JSuk  ».  Hyde, 

*  T*»iMport»tioii  Co.,  17  Hun  879  (N.Y.). 

73 


74 


LAW  OF  TBI  llfPLOTlCllfT  OF  LABOR 


teining  the  right  thei«to;i  though  an  eaforaeable  agreement 
may  be  made  by  aa  emplogree  to  aHigD  ao  intentt  in  di  pa 
secured  by  him,*  or  the  entire  title  may  be  aeoiued  to  the  em- 
ployer  by  a  suitable  contract.*  Where  the  employee  wm  the 
property  or  labor  of  his  employer  to  perfect  an  invention,  and 
assents  to  the  use  of  it  by  his  employer,  he  cannot  by  afterward 
obtaining  a  patent  compel  the  employer  to  pay  a  royalty,  but  will 
be  presumed  to  have  given  him  a  license  to  use  the  invention.* 
Statutory  regulation  of  the  working  time  has  been  under- 
taken hi  a  number  of  states,  and  for  employees  eogafed  m  mter* 
state  commerce  by  the  United  States.*  The  state  laws  an 
sometimes  general  in  effect,  fixing  the  number  of  hours  that 
constitute  a  day's  labor  generally,*  domestic  and  farm  labor 
being  conmionly  excepted ;  or  they  may  fix  the  hours  of  htbor 
in  designated  employments,  as  in  smelters,  underground  mines, 
etc.,'  where  work  is  done  in  compressed  air,*  on  railroads,* 
street  raUways,"  in  drugstores,"  bakeries,"  and  brickyards." 
The  ha«rs  oi  kbor  on  publie         are  limited  in  a  number  of 

« Sotonoiia  t.  U.S.,  127  U.S.  342.  H  Sup.  Ct.  88 ;  Joliet  Mfg.  Co.  f.  Dioe.  105 
ni.  049. 

»  Wright  t.  Voealion  Organ  Co.,  148  Fed.  209.  78  CCA.  183. 

•  HoIm  f.  B<»Mek  M»eh.  Co.,  65  Fed.  864,  13  CCA.  180. 

•  GiU  ».  United  Sutea,  160  U.&  438, 16  819.  Ct.  833 ;  Moaorg  t.  irt-aHflni, 
42  U.S.  187  (1  Howard  202). 

•  Act  of  March  4, 1907, 34  Stet.  1415. 

•  Ind..  A.8.,  aee.  7062 ;  Mian..  RX..  Me.  17»S ;  N.Y.,  Cm.  L.,  eh.  81.  mo.  8, 

etc. 

'  Colo.,  Acts  1906.  ch.  1 19 ;  Mo..  Aeto  1905.  p.  380 ;  Utah,  C.L..  ne.  1337,  ete. 

•  N.Y..  Acts  1909.  oh.  291. 

•  C<Mia..  Acta  1907.  ch.  242 ;  Ind.,  Acta  1907,  ch.  131 ;  N.Y.,  Con.  L..  ch.  31. 

BBC.  7. 

»  Md..  Pub.  G.  L.,  art.  4,  sec.  793 ;  Maaa.,  Aeto  1906,  ch.  463,  pt,  3.  aee.  95. 
"  Cal..  Aeto  1907.  eh.  224. 

"NJ..  Aeto  1906,  eh.  loa.  »  N.Y.,  Con.  L,  eh.  81,  aee.  6. 


HOURS  OF  LABOR  75 

BUtea,'  and  by  the  Federal  government.*  Lawi  Aiaty^n^nj 
the  hours  of  labor  on  public  roads  are  found  in  many  states, 
though  they  apply  principally  to  the  working  out  of  taxes,  and 
idtle  kM  to  the  employment  of  labor  than  to  a  regulation  by 
the  people,  Mting  through  their  representatives,  of  the  time  of 
their  own  aervioe  in  this  pwtioiilar.  They  are  significant,  how- 
ever, as  indicating  what  ia  ooniidered  a  day's  labor  in  a  form  of 
public  work,  though  they  establish  a  minimum  day  (uauaUy 
eight  houra),  rather  than  fix  a  limit  bqrond  whieh  labor  is  focw 
bidden. 

Unless  overtime  work  is  prohibited,  the  employer  may  require 
additional  hours  of  service,  either  by  contract,  or  in  accordance 
with  understood  eustom,  and  no  additional  compensation  will 
be  reooverable  therrfor.*    If  overtime  Ubor  is  prohibited, 
and  is  performed  at  the  request  of  the  employer,  it  has  been  held 
that  the  employee  can  recover  no  pay  for  suoh  exeem  labor, 
being  equally  a  violator  of  the  law  with  his  employer,  and  unabto 
to  rean  by  law  the  benefit  of  his  illegal  act;*  so  also  of  the 
recovery  of  damages  for  injuries  received  while  working  beyond 
the  prescribed  period,*  though  this  is  undoubtedly  a  hard 
mteipretation  of  the  law,  since  such  an  act  cannot  be  said  to  be 
more  than  an  occasion  for  the  injury,  and  not  usuaUy  in  any 
way  the  cause  of  it.   (See  p.  81.) 

Additional  pay  may  be  required  by  statute  where  time  beyond 

« Colo.  Supp.,  ^  2801.  to  3801i:  Kmob..  O.S..  mm.  S837  to  8830-  N  T 
Con. L..  ch. 31. Acta  1897.  No. 374.  etc.  *  ' 

»  Act  of  August  1,  1892,  27  Stat.  340 
^J  U.S.  •.  Martin,  94  U.S.  400;  Ludco,.  Hotohki*.  37  Conn.  819. 9  An.  Rap. 

♦  Short  f.  Bullion-Beok  Min.  Co.,  20  Utah  20, 87  Fke.  720. 
*Uord9.  B.  Co.,  181  N.C.  836.  06  S.E.  604. 


MICROCOPY  RtSOtUTKMH  TBT  CHAKT 

(ANSI  and  ISO  TEST  CHART  No.  2) 


76 


LAW  OP  THE  EMPLOYMENT  OF  LABOR 


the  fixed  limit  is  worked.^  The  Michigan  statute  to  this  effect 

was  held  not  to  apply  to  employment  by  the  week,  month,  or 
year.*  A  statute  of  Nebraska'  fixing  the  hours  of  labor  at 
eight  per  day,  excepting  farm  and  domestic  labor  from  its  pro- 
visions, and  requiring  extra  pay  for  overtime  labor,  was  held  to 
be  unconstitutional,  Ixtth  as  denying  the  right  of  contract  and 
as  effecting  an  unjust  discrimination  against  the  excepted 
classes  of  labor.^  In  the  present  state  of  opinion  it  cannot  be 
anticipated  that  any  law  regulating  generally  the  hours  of  labor 
of  adult  males  will  be  sustained  as  a  restrictive  or  mandatory 
measure,  their  force  being  nothing  more  than  directory,  and 
subject  to  control  by  contract. 

Of  like  nature  with  laws  of  this  class  was  a  law  fixing  the 
number  of  pounds  that  make  a  ton,  where  the  ton  is  the  unit 
used  as  the  basis  for  the  payment  of  wages.'  It  was  held  that 
such  a  law  cannot  be  defeated  by  merely  setting  forth  a  custom 
of  the  employer  to  use  a  different  standard ;  but  if  there  was 
a  special  contract,  or  if  it  appears  that  the  employee  knew  of 
the  custom  at  the  time  of  hiring,  no  recovery  can  be  had  for  the 
excess  over  the  legal  weight.' 

Section  35.  Constitutionality  of  Statutes  Limiting  the  Hours  of 
Labor.  —  Interference  with  the  freedom  of  contract  in  such 
regard  is  of  course  justifiable  if  shown  to  be  a  proper  exer- 
cise of  the  police  power.  The  limitation  of  the  hours  of 
labor  of  rulroad  employees  is  held  to  be  valid  as  not  only 
benefiting  the  employees,  but  also  as  conducing  to  the  pub- 

>  MIoh.,  C.L.,  see.  5453 ;  Cal.,  Pol.  Code,  sec.  3248. 

»  Schurr  r.  Savigny,  85  Mich.  144,  48  N.  W.  547.  »  Aeto  1801,  oh.  54. 

•  Low  V.  Rees  Printing  Co.,  41  Nebr.  127,  59  N.W.  362. 

•  Pa.,  Acta  1834,  p.  527.  mc.  17. 

•  Qodolwriw  f.  WiiemMi,  113      481, 6  Atl.  854. 


fiOURS  OF  LABOA  ff 

He  safety; »  though  a  lower  court  of  the  State  of  Ohio  de- 
clared such  a  law  an  unwarranted  invasion  of  the  right  of 
contract"    It  has  .been  held  that  state  laws  on  the  subject 
wiU  have  to  give  way  to  the  Federal  law  applicable  to  m- 
terstate  commerce,  enacted  under  the  .  commerce  power  of 
Congress,  on  account  of  the  difficulty  of  separating  inter- 
state from  intrastate  operations;  but  the  better  view  seems 
to  be  that  they  may  exist  coordinately,  if  not  in  conflict.' 
For  Ubor  in  mmes,  smelters,  and  other  places  where  work- 
men are  exposed  to  unhealthful  conditions,  it  is  the  welfare 
of  the  employee  alone  that  is  looked  to,  this  fact  being  suf- 
ficient, on  a  proper  showing,  to  support  the  law.«  If,  however, 
health  is  not  shown  to  be  in  jeopardy,  the  law  wiU  faU.'  The 
Colorado  supreme  court  declared  unconstitutional  a  law  limiting 
the  hours  of  labor  of  employees  in  mines  and  smelters,  declaring 
that  the  state  had  no  right  to  interfere  in  a  private  business,  in 
which  no  matter  of  pubUc  welfare  is  involved,  merely  to  protect 
the  health  of  an  adult  male,  when  the  act  prohibited,  if  com- 
mitted, "wiU  injure  him  who  commits  it,  and  him  only."* 
Fortunately  such  reasoning  has  not  appealed  to  our  courts 
generally.   The  lunitation  condemned  by  the  court  is  now 
embodied  in  the  constitution  of  the  State  of  Colorado.' 

«  State  r.  Northern  P.R.  Co..  36  Mont.  682,  93  Pac.  948. 
«  Wheeling.  B.  A  T.  R.  Co.  «.  GUmore,  8  OUo  C.  C.  Rep.  658. 
'  Compare  State    MfawuriP.  R.  Co..  212  Mo.  658.  HI  S.W.  600;  State  v. 
worthern  P.  R.  Co.,  »upra,  and  State  «.  Chicago,  etc..  R.  Co..  136  Wis.  407  117 

^  ,rMlJ'*iL°*'n/«V»*  N.C.  536. 66  S.E.  604.  and  People..  Erie  R. 
Co..  198  N  Y.  869.  91  N.E.  849.  atao  Smith  Alab^na,  124  U.S.  466.  8 
Hup.  Ct.  664. 

246*  78  S  w'.fQ*t'  ]^  •  ^"t^*^-  Mo. 

/»  S.W.  669 ;  State  r.  Thompson.  15  Wyr  136  87  Pac  433 

•  Lochner    New  York,  198  U.S.  46,  26  Sup.  Ct.  639.    (Bake^r  employees.) 

•  In  T.  Mon^  28  Colo.  41«.  U  P«.  lOTl.  ,  Art  g.  L  Z! 


78 


LAW  OP  THE  EMPLOYMENT  OP  LABOR 


A  law  regulating  the  hours  of  labor  of  employees  on  street  rail- 
ways was  held  to  be  within  the  power  of  the  legislature  to  enact, 
and  therefore  constitutional,  on  three  grounds,  —  that  it  dealt 
with  public  corporations,  which  are  created  by  and  subject  to 
legislative  action  and  control ;  that  it  was  the  regulation  of  the 
use  of  a  public  franchise;  and  that  it  provided  for  the  public 
safety  by  protecting  employecB  from  exceanve  stnun.* 

The  boundary  line  between  constitutional  and  unconstitu- 
tional laws  of  this  class  is  jealously  guarded,  and  is  not  yet 
clearly  defined.  Thus  a  New  York  statute  limiting  the  hours 
of  labor  m  bakeries  *  was  upheld  by  the  highest  court  of  the 
state  by  a  majority  of  one,*  and  rejected  by  the  Federal  Su- 
preme CJourt  by  a  Uke  majority,*  the  entiie  difficulty  being  the 
difference  of  view  between  the  courts  and  the  members  com- 
posing them  aa  to  what  is  and  what  is  not  a  proper  enrdse  of 
the  police  power  in  behalf  of  the  public  welfare. 

It  would  appear  to  be  a  sufficient  support  for  laws  limiting 
the  hours  of  labor  on  public  works  that  the  state  has  a  right  to 
prescribe  the  conditions  under  which  its  own  work  shall  be  per- 
formed." Mimicipal  corporations  are  but  auxiliaries  of  the 
state  for  the  purposes  of  local  government,  and  exercise  their 
powers  under  grants  from  the  state,  subject  to  restriction  or 
enlargement,  as  the  l^pslature  may  from  time  to  time  see  fit  to 
act.»  A  contrary  view  has  heea  taken,  however,  which  is  to 
the  effect  that  such  (x»porations  are,  in  the  conduct  of  local 

« In  re  Teo^iour  Law,  34  R.I.  803, 54  Atl.  Mtt.      »  Qm.  L.,  eh.  31.  mo.  110. 

»  Peoide  V.  Lochner,  177  N.Y.  146,  69  N.E.  373. 

*  Lochner  ».  New  York,  198  U.S.  45,  26  Sup.  Ct.  639. 

» Waiiams  v.  Eggleston,  170  U.S.  304,  18  Sup.  Ct.  ei7;  Atlda  t.  »'">Ttn.  IBl 
U.S.  207,  24  Sup.  Ct.  124 ;  Keefe  t.  People.  87  Colo.  817, 87  Fte.  791,  Braa  9. 
CHy  oi  New  York.  177  N.Y.  271,  W  NJS.  880. 


HOURS  OF  LABOB  79 

affairs  and  the  expenditure  of  money  raised  by  local  tantioo 

on  the  same  footing  with  private  corporations,  and  not  sub- 
ject to  the  abridgmenc  of  their  right  to  contract  froely.* 

Section  36.  Sunday  Labor.  — Where  a  contract  is  for  the 
entile  time  and  services  of  an  employee,  whether  or  not  this 
includes  hibor  on  Sunday  depends  on  custom  and  the  manner  of 
conductmg  the  business.*  The  common  law  does  not  forbid 
Sunday  labor,  but  laws  have  been  enacted  in  nearly  eveiy  juris- 
diction of  the  United  States  restricting  such  labor  to  works  of 
necessity  or  charity.   The  excepted  occupations  may  be  enu- 
tnerated  in  the  statute,'  or  it  may  be  left  to  the  courts  to  decide 
what  occupations  come  within  the  language  of  the  law;  or  the 
law  may  be  general,  with  specific  designations  of  some  one  or 
more  employments.   Though  laws  of  this  last  class  are  in  a 
sense  discriminatory,  they  have  been  upheld  as  constitutional,* 
though  not  uniformly.* 

The  operation  of  passenger  trains  and  of  trains  carrying  live 
stock  and  perishable  freight  is  generally  aUowed,  though  in  a 

Co  67  Oh.0  St.  197. 65  N.E.  885 ;  City  of  Seattle    Smyth.  22  W«di.  827. 60 
T  *»«  «tion  of  the  court  of  appeal,  of  the 

rtate  the  people  of  New  York  «nend«I  their  oonrtltatteB.  .pedficlly  authori- 
»«the  le«|riature  to  re^date  contracta  of  employment  on  pubUo  work^ 
««»rdanee  with  which  ch.  506.  Acte  of  1906.  waee^^  TlLuwd;e« 
held  constitutional,  the  court  sayin,  thi»t  th.  p«.pl.  h.^  S  ^ 

o^omof  contract  to  yield  «,  far    r««,n.Wy  nece.«ryto^r«.c; 

^•«'*Willl«n.Bn..*Con.t.Co...Met..l93lJri48.85NS. 

•  Collins  Ice  Cream  Co.    Stephens.  189  HI.  200, 69  N.E.  £24. 

•  Mass.,  R.L.,  oh.  98,  aeo.  8. 

693*  wtJ!;  "^T^r  ?f       ^  ««« =  State    DoUm.  18  idUn, 

693.  92  Pac.  995 ;  People  ».  Bellet.  99  Mich.  161.  67  N.W  1094 

326  ^"5* "rl!"  ^^T'  'Z^'"^-       ^  N-^-  3 :  State    QtJu,^  182  Mo. 
326.  33  8.W.  784 ;  Eden  t.  People,  161 HL  296, 48  1108.^ 


80 


LAW  OP  THB  BBfPLOTMENT  OP  LABOR 


number  of  states  the  operation  of  trains  of  any  kind  is  forbidden. 
Where  laws  of  this  sort  exist,  they  are  construed  as  regulations 
of  internal  poUce,  and  not  of  commerce.^  The  publication  and 
mle  w  newspapers,  the  sale  of  drugB,  tobacco,  milk,  ice,  and 
the  like,  are  also  generaUy  permitted.  A  common  provision  is 
one  that  exempts  from  the  requirement  of  the  observance  of 
Sunday  as  a  day  of  rest  those  who  observe  another  day.   A  few 
states  have  laws  requiring  the  granting  to  employees  of  a  weekly 
day  of  rest,  that  of  Massachu.-etts  being  in  effect  a  requirement 
that  workmen  employed  on  Sunday  shall  be  allowed  a  day  of 
rest  'nthin  the  week  foUowinc.«   The  law  of  Missouri  ^  applies 
only  to  employees  in  bakeries,  while  that  of  California  is  gen- 
eral.* This  state  has  no  Sunday  law,  strictly  speaking,  such 
laws  having  been  held  by  the  courts  of  the  state  to  be  in  viola- 
tion of  religious  freedom,  as  compeUing  the  observance  of  a  day 
held  sacred  by  the  believers  in  one  faith  and  not  by  others.* 
Though  this  opinion  was  reversed  in  a  later  case,'  the  present 
law  is  one  requiring  a  weekly  day  of  rest,  the  day  not  being 
designated.   Opposed  to  the  view  that  laws  of  this  sort  have  a 
reUgious  aspect  is  the  one  that  regards  them  as  social  or  eco- 
nomic measures,  and  not  as  compeUing  religious  observance.' 
In  the  Petit  case  it  was  said  that  laws  of  this  class  are  supported 
as  constitutional  by  "  well-nigh  innumerable  decisions  of  the  state 
courts,"  as  well  as  by  the  uniform  course  of  the  Supreme  Court. 
The  effect  on  the  employee's  right  to  recover  when  he  is  in- 

>  Henaington    State,  90  Oa.  396,  17  S.E.  1009;  affirmed,  163  U.S.  209. 16 
Bap.  Ct.  1086 ;  Norfdk  A  W.R.  Co. ».  Cora.,  93  Va.  749.  24  S  E  837 
•Acta  1907.  ch.  677.  •  R.S.  sec.  10088.  ' 

*  bim'«  Penal  Code.  App.,  p.  722.  .  Ex  parU  Newman.  0  Cal.  602 

porta  Andrews,  18  CaL  678.  ™i.»v.ai.«K. 
'  Petit ..  Miniiewte,  177  UA  164. 20  Sup.  Ct.  666 ;  Swans    Swwm.  21  Fed. 


299. 


HOU&S  OF  LABOB  gi 

jured  in  work  being  carried  on  in  violation  of  Sunday  lawa  ia 
ruled  on  differently  by  different  courts.   Thus  it  haa  been  held 
that  labor  on  Sunday  in  violation  of  the  law  ia  contributoiy 
negligence,  so  that  an  employee  could  not  recover  for  iiguries 
received  while  so  laboring,  even  though  the  defect  causing  the 
injury  was  due  to  the  employer's  negligence ;  ^  while  the  con- 
trary rule  ia  hud  down  elsewhere,  on  the  ground  that  the  em- 
ployee's  act  in  hOxuing  on  Sunday  was  not  more  than  the  remote 
cause  of  the  accident,  the  negligence  of  the  employer  being  the 
proximate  cause.«  Cleariy  the  employer  should  not  be  aUowed 
to  ask  for  and  receive  the  benefits  of  such  service  and  then  dia- 
claim  liability  for  injuries  caused  by  his  own  negBgence  during 
its  performance.   It  is  the  law,  however,  that  no  recovery  can 
be  had  for  wages  for  prohibited  labor  on  Sunday,*  and  that  a 
contract  mvdving  service  on  Sundays  and  other  days  is  an  en- 
tire  one,  the  illegality,  so  far  as  the  Sunday  work  is  concerned, 
rendering  the  contract  entirely  void,  so  that  the  employee  can 
recover  nothing  in  an  action  at  taw  for  any  of  his  services: « 
though  a  subsequent  promise  to  pay  will  support  an  action  for 
the  value  of  the  work  done.'  Of  course  no  action  wffl  he  for  a 
breach  of  contract  for  such  tabor;  •  but  where  payments  have 

> Read.. Borton  4 A.R.  Co..  140  Ma«.  199. 4  N.E.  227 •  b«t N»««nK . 
Borton  Protective  Dept..  146  Ma«.  696.  16  N.E  666  Neweomb  •. 

Co.;  T^L?Co.'?3*SowS;'27  3  U  S  ^^^^^ 

MB.  90  N.E.  1 150.  ^ '  Di^^Mon.  204  M««. 

•  Carson  ».  Calhoun,  101  Me.  466  64  Atl  asta .  n_     ^  „ 

•  Stewart ».  Thayer.  168  Maw.  619  47  N  E  Aim .  B1..1      a     . . 
William,,.  Hastings,  69  N.H.  373  '  Amold. M Ky. 287 ; 

•  Telfer  v.  Lambert,  (N.J.L.)  76  Atl.  779. 

•  Bernard  ».  Lttpping,  32  Mo.  841. 


a 


82         LAW  OF  TM  mPLOTiaNT  OF  LABOR 

beai  made  for  Sunday  labor,  they  cannot  be  recovered  by  the 
emptoyw  on  the  ground  of  the  invaUdity  of  the  contract  for  luoh 
Ubor.> 

The  invaBdity  of  a  oontwet  for  Sunday  labor  wffl  not  operate 
to  reheve  one  from  the  penalty  for  an  addhional  offense  in  eon- 
nection  therewith,  as  the  employment  of  a  ohfld  in  a  plaoe  wiiera 

intoxicants  are  sold,  such  employment  being  forbidden,  ainee 
the  service  itself  is  the  evU  to  bo  guarded  against,  without  rer «  d 
to  the  means  by  which  the  engagement  was  m  fact  proc  ^ 
Where  the  employer  is  entitled  to  the  defense  of  fellowns..  vice 
the  employee  cannot  overthrow  it  by  showing  that  he  was  at 
wwk  on  Sunday  in  violation  of  law,  and  therefore  employed 
under  a  void  eontraet,  and  ao  not  an  employee.* 

>  CalkiM    Mining  Co.,  5  a  Dak.  300. 58  N.W.  797. 

•SUte  t.  HaU.  141  Wia.  30, 123  N.W.  2S1. 

•  ShMUMD  ».  Union  B.  Co.,  27  BJ.  476,  S3  Atl.  488. 


CHAPTER  IV 

MOTOATION  or  THE  PHYSICAL  CONDITIONS  OF  BMPLOTMaNT 

Section  37.  Statviory  CofOroL  ^Tb^  oonditioiis  surround, 
mg  employees  in  their  places  of  employment  an  the  subjeet  of 
regulation  by  statute  in  most  of  the  states  of  the  Union,  wberaby 
the  freedom  of  the  employer  to  carry  on  his  business  in  acoord- 
•noe  ^th  his  own  ideas  and  plans,  secured  to  him  in  general  by 
c  principles  of  the  common  law,»  is  interfered  with  The 
Pnneip*!  groups  of  laws  of  this  class  relate  to  the  conditions  of 
«fety  and  sanitation  required  in  factories,  etc.,  the  equipment 
and  operation  of  raUways,  mining  operations,  and  the  erection 
and  repair  of  buildings. 

SEcnoN  38.  Regulation  of  Factories  and  Warkdufps.  ^  Fu>. 
tory  regulations  range  .  '  .  simple  requirement  that  the 
doors  of  workrooms  sh  outwardly  as  a  safeguard  in  case 

Of  fire,  provision  for  fire  escapes  being  coupled  therewith  in 
■ome  cases,'  to  an  elaborate  code  covering  the  guarding  of  dan- 
gerous  machinery,*  the  removal  by  forced  draft  of  dust  and 
uyunous  gases,*  the  adequate  provision  of  light  •  and  air,'  and 

'  Tuttlo  r.  Detroit,  etc.  R,  Co..  123  IT  8.  IM  T  1 1«  « 

« Mm,  Code,       2272.  "W-  Seeabo^c.flo. 

»Oa..  Pol.  Code,  «c.  2822;  S.  Dak..  R.C..  mc.  3163,  3165. 

ma- 7087O ;  N  J.,  Act.  1904,  oh.  64,  lec  19. 


84 


LAW  OP  THE  EMPLOYMENT  OP  LABOR 


the  supply  of  suitable  water  for  drinking*  and  for  hmnidifyiBg 
the  atmosphere.'  One  state  prohibits  the  taking  of  food  into 
rooms  in  which  poisonous  or  injurious  fumes  or  dusts  are  pres- 
ent.' Toilet  rooms  and  privies  may  be  required,  their  number 
fixed  in  proportion  to  the  number  and  sex  of  employees,  and 
thdr  location  and  condition  preaeribed.*  Where  the  health  of 
the  general  pubUe  ie  dbectly  involved,  ae  in  the  nuuiafaetiiie  of 
bakery  products,*  of  butterine  or  ice  cream/  or  of  etothioK' 
the  regulations  may  be  even  more  detailed,  as  by  requiring  rooaa 
to  be  periodically  lime-washed,  prohibiting  the  uae  of  cellan, 
and  the  like. 

Of  like  nature  with  some  of  the  above  laws  are  the  laws  of  a 
few  states  which  have  for  their  object  the  protection  of  agri- 
cultural labor  where  machineiy  is  employed,  requiring  safe- 
guards on  horee  powers,*  or  com  huakere  or  ehiedden.* 

SxcnoN39.  ^^BoOera.  — The inspeetkmirf steam bdkra 
is  sometimes  provided  for  in  connection  with  laws  lelatmg  to 
factory  inspection,"  but  in  v.  my  states  byseparate  laws."  This 
inspection  is  for  the  most  part  confined  to  stationary  boilers  and 
engines,  though  in  a  few  instances  locomotive  boilers  are  in- 
cluded.»  Marine  engines  and  boilers  are  required  to  be  in- 

« MaM.,  Acta  1909,  oh.  614,  no.  78 ;  RJ.,  AeU  1907,  oh.  1429. 

»  M«M..  Aoto  1908,  eh.  820.  •  Bl.,  AoU  1909.  p.  202,  mo.  8. 

lo3o-32. 

•  Cal.,  Acts  1909,  oh.  104 ;  lad.,  Aeta  1909,  eh.  168 ;  P«.,  B.P.  Dig.,  p.  «8. 
•lU.,  Acta  1907,  p.  309.  ^ 
»  Md.,  P.O.L.,  Art.  27,  sees.  234-243 ;  N.Y.,  C.L.,  oh.  31,  Moa.  100-106. 

•  111.,  A.8.,  ch.  70,  aec.  3 ;  lows,  Code,  sec.  6026. 

•  Mich.,  Acts  1907,  ch.  124 ;  Wis.,  A.8.,  lec.  1638-181,  M  aw. 
*•  P*.,  Aota  1906,  No.  226,  aae.  19. 

"  Conn.,  G.S..  sees.  4890  et  »eq.;  Minn.,  R.L..  sees.  2168  et «««. 

"  Mass.,  Acts  1906.  ch.:463.  Pt.  U.  aeo.  173 ;  N.Y..  Con.  L..  eh.  49,  aeo.  72. 


PHTMCAL  CONDITIONS  OF  EBfPLOYMBNT  86 
jected,  not  only  by  sUte  laws,  but  by  rt«tut«  of  the  United 

Swirair  M.  S(awai^~-ln  rapect  of  the  provirionB  as  to 
loooa^,»d  mttine  boUm,  the  intemrta  of  the  general  public 
coincide  with  thoie  or  the  empk^ee  to  mq^ort  the  law,  as  ia  the 
case  m  the  matter  of  safety  appli«ioe.  on  nShn^  gnenSty 
which  are  likewise  the  subject  of  both  itate  and  federal  legialJ 
tion.   These  laws  relate  to  the  use  of  automatic  couplers,*  power 
brakes/  the  blocking  of  frogs/  the  installation  of  telltales  or 
winJng  strings  at  the  approaches  to  bridges,  tumiels,  etc./  the 
of  wires,  bridges,  and  other  construction  work  across  the 
tndc.  ol  iiiho«i8.«  the  ne.M  of  buUdings  and  other  objects 
to  the  tracks,'  the  equipment  of  ftdght  ean  with  grab  irons, 
ladders  etc.,«  the  use  of  adequata  headlightB  on  k>comotive8,>  the 
employment  of  a  sufficient  crew  for  the  handling  of  trafau,»  the 
adoptaon  and  enforcement  of  suitable  rules  to  control  the  operw 
ation  of  trains,"  and  other  matters  conceived  to  add  to  the  safe 
opwation  of  the  roads.  Some  states  authorize  the  promulgation 
•nd  enforoement  of  rules  by  their  state  railway  commissions  » 

'SL'^f '  ^•/?*-l«».«'l'-3M;  Ind.. Act.  1907. Alia. 

"^^^s"^'  ^m'^W iwo. p- 33a 

U.S.  sec.  3799 ;  Wis.,  A.8.  sees.  1809r  ttMO. 
»Colo,Aotii80r.eh.a08;  VI., PA. lee. 4eil. 


86 


LAW  OF  THl  IMPLOTMENT  OF  LABOR 


Street  railway  employees  must  be  protected  from  the  inefom- 
encies  of  the  weather  by  the  use  of  inclosed  platforms  for  motoiw 
men  in  a  number  of  states,*  while  a  ferv  direct  seats  to  be  fur- 
BidMd  for  thdr  use.'  Some  also  have  safety  appUanoe  laws 
•pfXmhit  to  fuch  roads.* 

tion  of  mines,  providing  for  ventilation,  meuis  of  edt,  methods 
of  working,  the  setting  and  firing  of  blasts,  the  use  of  safety 
lamps,  and  for  the  general  inspection  and  supervision  of  the 
work  are  found  in  practically  all  states  within  whose  boundaries 
mining  is  carried  on.«  The  Congress  of  the  United  States 
passed  a  law  of  this  class,  applicable  to  mmes  m  territories  until 
a  local  law  should  be  passed  satisfaetorily  covering  the  ground 
of  the  Federal  law.*  Beddes  the  general  provirions  noted  above, 
the  use  of  speaking  tubes  or  other  means  of  communication  may 
be  required;  and  the  «niarding  of  hoistways  and  sumps,  the 
supply  and  placing  of  timbers,  the  construction  and  operation 
of  cages  for  miners  and  of  hoists  for  coal,  the  location  and  quan- 
tity of  powder  stored  in  or  about  the  mine,  safeguards  against 
outbursts  of  gas  and  water,  and  many  other  details  may  be 
I»ovided  for  by  the  law. 

Stction  42.  Building  Opsrtrium*.  —  The  dangers  involved 
m  buildmg  operations  are  contemplated  in  the  laws  of  a  number 
of  states,  by  which  the  construction,  testmg,  and  barricading  of 
scaffolds,  staging,  etc.,  are  regulated,  floors  required  to  be  filled 
in  or  planked  over  within  designated  distances  as  the  work  of 

«  Conn.,  G.S.,  sees.  3869.  3870 ;  Ind.,  A.S..  mc.  5479 ;  Iowa.  Acta  1009,  Ol  51. 
«  Conn.,  Acts  1909.  ch.  237 ;  Oreg.,  Acta  1909.  ch.  59. 
•  Cal.,  Pen.  Code,  aeo.  369a;  N.H.,  Acta  1907,  ch.  113. 
«  Ala,,  Code,  leca.  gOO-lOS-^ ;  Colo..  A.8.  aecs.  3181-3220 ;  lU.,  R.8.,  ch.  93  ; 
Ind.,  Aoto  IOCS.  eh.  50 ;  Pa.,  B.P.  Dig.  p.  1340,  ttteq.  '26  Stat.  1104. 


PHT8ICAL  CONDinONB  Oif  UCPLOTlflNT  87 

WWfaif  progrMMt,  or  leoondary  scaffolding  required  the 
foudinff  of  hoirtwajr.  or  shiifts.  and  provisions  that  hoists, 
crwes,  and  otli«medi«iicia  ocntrivanoeithiai  bewoon^ 
and  operated  as  to  protect  the  life  and  limbe  ot  employeei  may 

also  be  included.*  The  conditions  of  employment  in  oompraMed 
air  are  set  forth  with  considerable  particularity  in  a  law  >  whieh 
requires  decompression  locks  and  medical  and  toilet  rooms  to  be 
provided. 

SicnoN  43.  iiecufente.- Appliances  for  rendering  medical 
•lid  euigical  aid,  as  bandages,  plastere.  absorbent  cotton,  oil, 
stretchers,  blanket.,  etc.,  are  to  be  provid«j  for  the  care  of  in- 
j  .ed  employees  in  factories  and  mines,  according  to  the  ouwt. 

ments  of  several  legislatures.* 

Reports  of  accidents  occurring  in  mines  and  factories,  some, 
tunes  extending  to  all  places  of  employment,*  are  required  by 
the  laws  of  some  states  to  be  made  to  either  an  inspector  or  some 
oth«  official.  Special  laws  are  found  in  some  states  with  ref- 
erenoe  to  reporting  accidents  on  raih^ads.*  Many  of  these 
laws  contain  provisions  for  the  investigation  of  the  cause  of  the 
accdent  and  the  determfaution  of  the  leqwnsibiKty  therefor.- 
Such  statutes  have  a  close  relation  to  the  liabiKty  of  the  em- 
Ployer  for  injuries  to  his  employees,  as  weU  as  to  the  r.atter  of 
improv,ng  the  conditions  surrounding  employees  in  the  -  .ilaces 

'  N.y.,  Acts  1909,  oh.  291 


88 


LAW  OP  THB  BMFLOYMINT  OF  LABOR 


of  WOTk.  Some  of  them  direet  the  mspector  to  take  steps  to 
prevent  the  reounenoe  of  like  accidents,  and  to  promote  the 
safety  or  convenience  of  the  pubUe  or  of  employees  by  requirmg 
proper  repairs  and  improvements  to  be  made.^ 

Mere  publicity  is  apparently  largely  reU^d  upon  as  a  means  of 
securing  the  changes  necessary  to  remedy  the  defective  condi- 
tions, if  any,  which  are  found  to  be  the  cause  of  the  accident. 
This  may  be  obtained  either  by  pubUcation,»  or  by  means  of 
reports  to  the  legislature  or  the  governor  of  the  state,*  or  by 
records  kept  m  the  books  of  a  state  commission.*  In  other 
cases  it  is  provided  that  the  facts  disclosed  and  the  names  of 
witnesses  shall  be  communicated  to  the  persons  iigured  or  to  the 
friends  of  those  killed  as  the  result  of  the  accident,  which  looks 
clearly  toward  facilitating  the  recovery  of  damages;'  or  the 
law  may  provide  for  reports  of  neglect  of  duty  to  be  sent  to  the 
prosecutmg  officers  of  the  state.'   The  opposite  view  is  taken  in 
states  m  whose  law  on  this  subject  it  is  expressly  provided  that 
the  facts  obtained  in  any  such  report  or  investigation  shaU  not 
be  used  at  any  trial  of  suits  for  damages,'  or  in  any  criminal 
prooeedmg  on  account  of  such  accident.* 

Section  44.  Construction  and  Interpretation  of  Safety  Stat^ 
tttor.  —  The  basis  of  these  provisions  of  law,  which  it  b  in^Ma. 

J^£^^Zl!'-^-;J^T''  Minn..  Act.  1905.  ch.  166 ;  Tenn..  Code, 
r  ?t'  Minn..  Act.  1907.  ch.  390; 

Vt.,  P.8.,  aec.  461 1 ;  N.  Y.,  Con.  L..  ch.  48.  wo.  47.  .  . 

» Ind.,  Act.  1907,  oh.  241 ;  Vt.,  P.S.,  mo.  4609. 

•  Minn..  AoU  1907,  oh.  290 ;  Wadi.,  Aot.  1907,  ch.  226. 

•  Ala..  Code  sec.  6666 ;  Ky..  8t«t.      777;  Mich..  Aote  1907.  No.  US. 

•  Conn.,  G.S.,  mc.  3800. 

•  Ind..  Act.  1907,  ch.  272 ;  Vt..  P.8.,  wo.  4609. 

J.  It'i^T  l^'r^  T  •  '"^^      "0  ••  Mont.,  Acta  1907,  ch.  87. 

•ao.  18 .  N.y.,  Con.  L.,  ch.  48,  wc.  47 ;  U.S..  31  SUt.  1446,  Comp.  St  p.  8176 

•  low.,  be.  eU.:  Moat.  ttceO.  .      p  «»».  p.  »i70. 


PHYSICAL  CONDITIONS  OP  EMPLOYMENT  80 

Bible  to  more  than  sketch  briefly,  and  which  are  being  changed 
and  extended  constantly,  is  the  police  power  of  the  state,  exer- 
cised, m  most  instances,  in  behalf  of  the  welfare  of  its  citisens  who 
are  employed,  though  in  some  cases  the  public  welfare  in  its 
broader  sense  is  obviously  concerned.  They  carry  out  and  are 
supported  by  the  doctrine  laid  down  by  the  Supreme  Court  in 
the  foUowing  language :  "It  is  a  principle  fully  recognized  by  de- 
cisions of  the  state  and  federal  courts,  that  wherever  there  is  any 
business  in  which,  either  from  the  products  created  or  the  m- 
strumentalities  used,  there  is  danger  to  life  or  property,  it  is  not 
only  within  the  power  of  the  states,  but  it  is  among  their  phiin 
duties,  to  make  provision  against  accidents  likely  to  follow  in 
such  business,  so  that  the  dangers  attending  it  may  be  guarded 
against  so  far  as  is  practicable." »   Nor  is  it  an  objection  to  the 
constitutionality  of  such  laws  that  they  give  grounds  for  actions 
which  would  be  without  foundation  at  common  law,  since  it  is 
withm  the  power  of  the  state  to  change  and  modify  the  prin- 
ciples of  the  common  law  customarily  applicable  to  the  lekitions 
of  employer  and  employee  m  accordance  with  the  conception  of 
public  poUcy  adopted  by  the  legisUture  in  view  of  existing  con- 
ditions.* 

Of  a  factory  mspeetion  law  it  was  said  that  it  was  a  police 
regulati<m  for  the  protection  of  the  lives,  health,  and  morals  of 
the  employeee  in  factories,  and  clearly  within  the  power  of  the 
legislature  to  enact,  so  that  there  could  be  no  doubt  of  its  con- 
stitutionaUty  and  vaUdity;*  while  rogulatiwis  applying  to 
b<»kerieB  have  regard  to  the  public  health,  and  are  within  the 

1  *         ^     Alabam*.  128  U.S.  96.  9  Sup.  Ct.  38. 

.  ZT"^\^^  ^  ^'  ^  t^-S-  «>.  27  Sup.  Ct.  412. 

Atl  fl  r*  'SI'S-       •*        «» '  St.**    Hy^n.  98  Md.  698.  57 

Atl.  0 ;  Anu  f.  Ajrtr.  188  m.  801. 81  NJB.  861. 


00         LAW  OP  THE  BMPLOYMBirr  OF  LABOR 

legidatVe  power  on  this  accou^^l  Mine  regulations  are  clearly 
within      reasons  of  the  Uws  aflfecting  factory  labor.*  Since, 
however,  mine  labor  is  known  to  be  especiaUy  dangerous  and 
exhausting,  bws  looking  to  the  safety  of  miners  may  be  sup- 
ported as  vaUd  on  the  ground  that  the  haiards  of  the  employ- 
ment justify  a  special  classification,*  bringing  such  bws  withm 
the  rules  laid  down  in  the  matter  of  legislation  affecting  railway 
employment.*   Of  these  laws,  as  of  the  federal  safety  appliance 
tows,  the  Supreme  Court  has  said »  that  they  do  not  give  the 
mine  owner  the  privilege  of  reasoning  on  the  sufficiency  of  ap- 
pliances or  on  the  conditions  mvolving  reasonable  safety,  but 
they  fix  a  standard  the  maintenance  of  which  becomes  the  em- 
ployer's imperative  duty,  from  which  he  cannot  be  excused 
because  some  workman  may  disregard  instructions.   An  em- 
ployer will  not  be  allowed  to  allege  impracticability  as  an  excuse 
for  failing  to  comply  with  the  law,  since  to  do  so  "would  be  the 
abrogation  rather  than  the  construction  of  the  statute."* 

As  to  other  laws  mentioned  above  as  belonging  to  this  class, 
there  is  Bttle  to  be  gained  by  added  discussion.  Laws  for  the 
protection  of  employees  on  street  raUways,  requiring  the  pro- 
vision  of  screens  or  inclosed  vestibules,  are  constitutional,'  as 
are  those  aiacted  to  secure  the  safety  of  onployees  on  buildings, 

« Bens  ».  Kramer.  142  Wis.  1. 125  N.W.  99. 

«  Chicago.  W.  A  V.  Coal  Co.  t.  People.  181  111.  270.  54  N.E  961  •  St.  1^  i. 
Co^  Coal  Co.    lUinoi..  185  U.S.  203. 22  Sup.  Ct.  616 ;  2^^.  ^^c^. 

•4^. «  *~  Sup.  Ct.  888;  Smith  ..  Woolf.  160  AUu 

•  MiMouri  P.  R.  Co. Mackey.  127  UA  205.  8  Sup.  Ct.  1161.   See  «c  90 

•  Oe«»rant Cerillo.  Coal  R.R.  Co..  178  U.S.  409.  20  Sup.  Ct.  967  " 

•  Morrta  Cod  Co.  t.  Donley,  78  Ohio  St.  298.  76  N  E  945 
»8*«»t.  Whftdnr,  160  »fo.  59, 608.W.  lOeP. 


PHT8ICAL  CONDITIONS  OP  EMPLOYMENT  91 

being  within  the  reasons  of  the  laws  of  this  claas  generaUy.t 
They  are  also  subject  to  the  construction  of  law  that  permits  the 
employee  to  lose  the  benefit  of  their  intention  in  those  jurisdic- 
tions that  permit  the  employee  to  assume  the  risk  of  his  em- 
ployer's faUuie  to  conform  to  the  provisions  of  the  statute,' 
or  that  declares  that  an  employee  continuing  to  work  under 
conditions  of  such  faUuie  ban  his  right  to  recoveiy  for  resultant 
injuries  because  of  his  act  in  so  continuing,  by  which  he  assumes 
the  risks  and  may  also  be  guilty  of  contributoiy  negligence,*— 
rulings  that  confirm  the  importance  of  a  clear  statutory  declara- 
tion  of  the  legislative  intent  in  the  enactment  of  laws  of  this 
class,  since  otherwise  the  ordinary  citizen  is  unable  to  determine 
what  are  his  rights  under  laws  enacted  apparently  for  his  bene- 
fit, but  seemingly  capable  of  being  ignored  with  impunity. 

With  regard  to  railways,  the  question  arises  as  to  the  control 
of  mterstate  commerce  by  Congress;  but  unless  the  field  is  so 
covered  as  to  exclude  state  control,  matters  of  intrastate  con- 
cem  may  be  regulated  by  state  laws  if  they  do  not  interfere  with 
existing  federal  statutes.*  On  this  view  the  fuU  crew  laws* 
have  been  held  valid.*  State  laws  regulating  the  use  of  auto- 
matic  couplers,  etc.,  also  come  within  this  rule;'  as  do  laws 

191  Man.  568,  77  N.E.  1161. 

I  O'MiJey    South  Boston  GuUglit  Co,  158  Mmi.  ISS.  32  N.B.  Ul». 

•  Stewart  r.  Ferguson,  supra. 

•  Ind..  Aeta  lfl07,  ch.  11 ;  Ark.,  Acts  1907.  No.  116. 

•  Pittsburg  etc  R.  Co.  State.  172  Ind.  147.  87  N.E.  1084 ;  CW««o.  R.I.  * 
P^  R^Co...  State.  86  Ark.  412.  Ill  S.W.iM.  Oinn^d,  219  uk  iSTw  ip. 

'Detroit  etc..  R.  Co.  State.  82  Ohio  St.  60,  91  N.B.  889;  LmbM  f.  New 
Y«wk.etc.,K.Co..l82MMfc848,6«N.E.1032.  ,«Bmoa«f.«ew 


82         LAW  OF  THE  BMPLOTMBNT  OF  LABOB 

requiring  telltales  or  warning  strings  ovw  trades  ftt  tbe  appnmdk 
to  bridges  or  tunnels/  fixing  staodwds  for  headli^ts  on  loco- 
motives,* and  similar  legislation. 

Section  45.  Enforcement.  —  In  many  of  the  states  having 
laws  of  this  class  provision  is  made  for  their  enforcement  by 
means  of  special  officials  or  inspectors,  as  labor  bureaus,  factory 
inqMction  offices,  and  mine  bureaus;  ^difle  in  others  this  duty 
devdves  on  such  officers  as  are  charged  with  the  enforcement  of 
the  laws  generally.  It  need  hardly  be  added  that  in  states  of 
the  latter  class  the  laws  are  usually  inefficiently  enforced.  The 
laws  of  the  various  states  differ  in  their  nature,  some  being  ab- 
solute and  mandatory  in  form,  directing  certain  provisions  to  be 
made  under  prescribed  conditions,  while  others  commit  large 
discretion  to  the  inspecting  and  enforcing  officers.   The  latter 
laws  are  open  to  critidsm  as  offering  opportunity  for  a  variety 
of  standards  as  the  judgment  and  disposition  of  the  enforcing 
officials  vary.  A  law  that  provided  that '!  it  appeared  to  the 
enforcing  officer  that  injurious  conditions  could,  to  a  peat  ex- 
tent,  be  prevented  by  the  use  of  some  mechanical  contrivance, 
he  should  direct  that  such  contrivance  be  installed,'  was  de- 
clared void  on  the  ground  that  it  imposed  on  the  inspector,  not 
the  duty  of  enforcing  a  law  of  the  legislature,  but  the  power  of 
making  a  law  for  an  individual,  and  enforcing  such  rules  of 
ctmduct  as  he  mi|^t  pnambe,  iriddi  was  an  mioonstitutional 
de^tion  <rf  leg^tive  power.* 

« V».,  Code,  sec.  1294-d ;  Cheupeake  A  O.  R.  Co.  t.  RowMy'i  Adm'j.,  108 
Va.  632,  62  S.E.  363. 

*St.  Louia.  I.  M.  A  S.  R.  Co.  •.  White, 98  Afk.  168, 135  8.W.  130;  AtiMitie 
C.  L.  R.  Co.  w.  State,  (Oa.)  69  S.E.  72fi. 

»  Cal.,  Ac*,  of  Feb.  6,  1889. 

« SohMdeia  t.  CabMiiaa,  13S  CaL  469. 97  Fm.  7U. 


PHT8IGAL  CONDITIONS  OF  KMPLOTMINT  fi8 


At  iHiat  poiiKfe  the  line  wmild  be  generally  drawn  by  the  courts 
b  not  dear,  ainoe  modi  of  tiie  detail  must  of  neoearity  be  l^t  to 
the  judgmmt  and  faitegrity  oi  the  enf<»dng  offieen;  and  such 
expressions  are  quite  common  as  "in  the  discretion  of  the  chief 
inspector,"  ^  "as  the  factory  inspector  may  direct,"  '  "the  in- 
spector shall  direct  the  proper  drainage," '  "if  it  appears  to  the 
inspector  that  such  [injurious]  inhalation  would  be  substantially 
diminished  " ;  *  and  to  attempt  to  eliminate  discretion  entirely 
is  obviously  impoadUe.* 

SacnoM  46.  DiaobeeHmee  of  Lam.  —  The  powet  of  the  state 
to  enaet  inspecticm  or  safety  am>lianoe  laws  oi  tiie  above  olaaaea 
is  not  queatifUMd  as  a  general  i»opodtion,*  and  tiie  failure  of  an 
employer  to  comply  therewith  has  been  held  to  be  negligence 
per  M  in  cases  where  injury  b^ralls  an  employee  by  reason  of  such 
failure;'  nor  does  the  employee,  in  such  a  view  of  the  law, 
assume  the  risks  oc.asioned  thereby.'  In  other  courts  such 
fulure  is  classed  only  as  evidence  of  negligence,*  in  which  view 
the  question  of  aesumption  of  riska  can  be  raised."  The  statute 

« Ind.,  A.S.,  MO.  708n.  •  Conn.,  Acta  1805,  oh.  13. 

•IIL.AoUlfl07.p.80».  •MMk,AetiigOB,olL614.iae.84. 

■Amu  f.  Ayer.  192  lU.  601. 61  N.B.  SSI;  St.  Loub  ConaoL  Com  Co.  t.  UU. 
nob.  185  VM.  203,  22  Sup.  Ct.  616. 

•City  of  New  York*.  MUn,  36  U.S.  71. 11  Pet.  102;  People  t.  Smith.  ICS 
Mich.  627, 66  N.  W.  382 ;  Stete  t.  Viokeni,  186  Mo.  103, 8«  BM.  908 ;  StMe  t. 
Hymu.  8S  Md.  596. 57  Atl.  6. 

'  Klatt  ».  Lumber  Co.,  97  Wia.  641,  73  N.W.  568 ;  Evaawflte  Boop  *  Stave 
Co. ».  Bailey,  43  Ind.  App.  163,  84  N.E.  549. 

'  U.8.  Cement  Co.  t.  Cooper,  83  N.E.  981  (Ind.  App.) :  Nunmora  t.  R.  Co., 
96  Fed.  298;  Weetern  Furniture  Co. ».  Bloom,  76  Kans.  127,  90  Pao.  821. 

•  Pitcher  N.Y.,  etc..  R.  Co..  127  N.  Y.  678, 28  N.E.  136 ;  Jupiter  Coal  Uin. 
Co.  »  Mercer.  84  111.  App.  96. 

»  Knidey  i.  Pratt.  148  N.Y.  C77. 42  N.E.  986 : 0'Maley  South  Boston  Gaa 
Light  COh  188  Umb.  185.  S3  N.B.  1110 :  D»vw  A  Rio  Grande  R.  Co.  t.  Gannon, 
40Cdo.  195. 90 Pw. 853;  Sm» t. Nor^kte,  141  Fad. 347. 


94  LAW  OF  THE  EMPLOYMBNT  OF  LABOR 

may  declare  faUure  to  oomply  with  the  law  prima  facie  evidence 
of  negligence,  or  that  the  employee  assumes  only  the  risks  that 
remain  after  the  employer  has  complied  with  the  laws  calling 

for  safety  appliances.' 

The  better  reason  seems  to  be  with  the  view  that  disobedience 
causing  injury  is  negligence,  since  to  permit  the  employee  to 
assume  the  risks  of  his  employer's  non-compliance  with  the 
statute  is  practically  to  aUow  him  to  enter  into  a  contract  of 
waiver  both  aa  to  the  provisions  of  the  Uw  and  as  to  his  rights 
thereunder,  which  amounts  to  allowing  the  employer  and  em- 
ployee to  determine  what  is  public  poUcy.  disregarding  the 
legislative  determination  embodied  in  the  law.»  The  right  so 
to  do  is  indeed  maintained  in  a  case  in  which  it  was  held  that  if 
the  proprietor,  although  failing  to  provide  the  statutory  instal- 
lation, had  yet  provided  one  equally  safe  and  convenient,  he  had 
performed  hu  duty  under  the  statute.*   The  Supreme  Court 
enounces  a  contrary  rule  in  a  case  involving  this  principle,  hold- 
ing that  no  one  can  urge  against  a  system  or  method  fixed  by 
statute  one  of  his  own  adoption  and  chaUenge  a  comparison 
between  them  without  virtually  denying  the  police  power  of  the 
state  in  this  behalf.* 

The  argum  nt  to  the  contrary  is  that  a  rule  under  which  it  is 
not  possible  for  the  employee  to  waive  the  protection  of  the 
statute  and  assume  the  risks  of  his  employer's  known  failure  to 
comply  with  ite  provisions  establishes  a  liability  unknown  to  the 
common  Uw.  "There  is  no  rule  of  public  policy  which  pre- 
vents  an  employee  from  deciding  whether,  in  view  of  increased 

« Colo..  A.8.,  8ec.  3751e:  N.Y.,  Con.  L..  ch.  81,  aee.  202. 
» Namunore  ».  R.  Co.,  tupra. 

•Gorman  t.  MoArdle.  51  N.Y.  £  .  248.  22  N.Y.  Supp.  479. 
«  Oatikit  of  Cdttmbia  t.  BkkAs.  214  U.S.  138. 29  Sup.  Ct.  660. 


PHYSICAL  CONDITIONS  OF  BMPLOTMBNT  95 

wages,  the  difficulties  of  obtaining  employment,  or  other  suffi- 
cient reasons,  it  may  not  be  wise  and  prudent  to  accept  employ- 
ment subject  to  the  rule  of  obvious  risks.  The  statute  does 
mdeed,  contemplate  the  protection  of  a  certain  class  of  laborers' 
but  it  does  not  deprive  them  of  their  free  agency  and  the  right 
to  manage  their  own  afifairs."  ^ 

The  law,  however,  contemplates  this  protection  by  way  of 
prescribed  met.'  .jds  and  instrumentalities,  with  reference  to  the 
use  of  which  the  discretion  of  the  employer  is  eliminated,  in 
order  that  the  statutory  standard  may  be  maintained  in  all 
establishments  alike;  and  it  is  difficult  to  reconcile  the  assump- 
tion  of  risks  in  cases  of  violation  of  the  statute  with  that  rule  of 
Uw  that  condemns  waivers  of  the  employer's  llabiUty  in  advance 
of  the  receipt  of  the  injury.'  Nor  is  it  clear  how  a  view  that 
insists  that  assumption  of  risks  is  a  matter  of  law,  imposed  on 
the  employee  "regardless  of  the  desires  of  the  master  or  the 
servant," » is  supported  by  an  argument  that  adduces  the  prin- 
ciples of  "free  agency  and  the  right  to  manage  their  own  af- 
faurs."*    No  fact  is  more  frequently  reiterated,  moreover,  in 
any  review  of  labor  legislation  than  that  it  is  no  longer  the  in- 
tention of  the  state  to  leave  employer  and  employee  to  the 
untrammeled  exercise  of  their  free  agency,  soHsalled,  but  that 

•  Knidey  «.  Pratt.  *upra.  See.  however,  a  recent  opinion  by  the  ume  court 
(Rhodes  J.  Sperry.  etc..  Co..  193  N.Y.  223.  85  N.E.  1097).  in  which  it  wa.  said 
that  the  fact  that  a  law  created  a  liability  unknown  to  the  common  law  was  no 
objection  to  its  constitutionality,  as  the  iegUlaUve  power  wa.  not  so  limited 
The  plea  of  assumption  of  risks  is  now  abolished  in  New  York,  where  the  injury 
resulted  from  the  employer's  faUure  to  comply  with  safety  statutes.  C.L  ch 
«.  aec.  202.  See  Persona  ..  Bush  Terminal  Co..  125  N.Y.  S.  277. 68  Misc.  Reo" 

«  See.  78. 

•  Denver  &  R.G.R.  Co.  ».  Norgate,  supra. 

•  Souiey  •.  Pifatt,  mtpra. 


96 


LAW  OF  THE  EMPLOYMENT  OF  LABOR 


its  bounds  are  to  be  fixed  for  the  nke  of  the  teMnl  welfara  of 

the  whole  people.' 

Statutes  are  not  wanting  that  formally  enlarge  the  liability  at 

common  law  by  abrogating  the  defense  of  assumed  risks «  or  of 

contributory  negligence/  or  both,  as  in  some  of  the  laws  cited, 

where  the  employer  ignores  the  law  as  to  safety  appliances;  and 

under  the  view  that  amimption  of  risks  is  a  matter  of  contract, 

it  would  appear  that  the  laws  prcriiiUting  ocmtraets  (tf  waiver 

of  the  provisions  <rf  statutes  must  necessarily  be  o(»i8tnied  as 

barring  this  defense ;  so  also  of  laws  that  give  to  an  employee 

iojured  by  reason  of  the  failure  of  the  employer  to  confwm  to  the 

requirements  of  the  statute  the  same  rights  of  recovery  as  if  he 

were  not  an  employee,*  since  it  is  only  of  an  employee  that  it 

could  be  said  under  any  circumstances  that  he  assumed  the 

risks  of  another's  undertaking.  A  weU  known  text  writer  has 
said:— 

"When  the  legislature  of  a  state  or  the  oounea  of  a  municipal 
corporation,  having  in  view  the  promotion  of  the  welfan  or  the 
safety  of  the  public  or  of  individual  members  of  the  public, 
commands  or  forbids  the  doing  of  a  particular  act,  the  general 
conception  of  the  courts,  and  the  only  one  that  is  reconcilable 
with  reason,  is  that  a  failure  to  do  the  act  commanded,  or  doing 
the  act  prohibited,  is  negligence  as  mere  matter  of  law,  otherwise 
called  negligimce  per  «e,  and  this  irrespective  of  aU  questions  of 
the  exercise  of  prudence,  diligence,  care,  or  skiU,  so  that  if  it  is  the 

•  See  "Police  power,"  see.  B. 

» lU..  Acta  1906.  p.  360,  aec.  9 ;  Ind..  A.S.,  aec.  8173c,  Acta  1907,  chs.  118. 131  • 
loiw.  Code.  tee.  2088,  Acta  1907.  ch.  181 ;  Maa...  R.L.,  ch.  111.  mc.  209 ;  U.S.! 
27  Stat.  631.  Comp.  St.  p.  3174. 

•Miaa.,  Code.  aec.  4061;  Mo.,  Acta  1907.  p.  181;  Ohio,  Oan.  Code, 
8946,  8956. 

« MMfc,  Acta  1908.  oh.  «14,i«».  127;  Ml»,  Court.,  Art.  7,  •«».  IM. 


PHTSICAL  CONDinONB  OF  IMPLOTMINT  97 

praimate  cmim  of  hurt  or  daousB  to  another,  and  if  that  other 

fa  without  ooiitrilMitoiy  IkuH,  the  eaae  ia  dadded  in  hia  teTor/' 1 
There  is,  however,  a  atroog  Ifat  at  eaaea  on  the  other  aide  of 

this  question,  holding  that  the  employee  may  anume  tiie  riaka 

of  such  disobedience  of  the  law  by  his  employw.  • 
A  statute  prescribing  certain  protective  arrangements  and 

abrogating  the  defense  of  contributory  negligence,  impoaing 

>  1  ThompMn  Neg.  sec.  IP  For  an  nrtendwl  and  inttmtiag  '«-«Ttfm  of 
tluM  pointo  MO  Camar  t.  Lev.in.  82  Kana.  604, 100  Pao.  667. 

•  DtBTW  A  B.O.B.  Co.  f .  Gannon.  40  Colo.  188,  M  Pac.  853,  and  oaaea  dted  • 
2  Labatt  M.  *  8..  aeo.  6M,  21  A.  &  E.  Eno.  Lkw.  478  ;  0  L.R.A.  (N.S.)  flSl.  Tte 
importance  of  clear  legUative  decUration  aa  to  the  intent  <tf  the  law  ia  empha. 
•i»ed  by  a  oonpuiioo  of  the  eitationa  found  in  the  above  aoureea.  with  which 
may  be  taken  thoee  given  in  Weatem  Furniture  ft  Mfg.  Co.  t.  Bloom,  76  Kana. 
127, 90  Pac.  821.  The  aituatior  in  a  aUte  without  auch  a  declaration  ia  aet  forth 
inMinneK)ta.whoaelaw(R.I,..,  1818)  dii*>tada»gareuamaehln«ry  and  appll- 
anoea  to  be  fenced  or  otherwiae  protected  "aa  far  aa  practicable."  In  conatru- 
ing  the  law  the  aupreme  court  of  the  atate  hdd  that  on  a  ahowing  that  a  guard  ia 
practicaWe.  ito  omiaaion  conatitutea  BagUgaiiee  (Callopy  t.  Atwood.  105  Mfain. 
mk^il  M^'  ^  Swenaon  t.  Oagood  &  Blodgett  Co.  (91  Minn. 

K»,  OS  N.W.  648)  aa  negjigenoe  per  m.   The  duty  of  proving  practicability  de- 
volvea  on  the  plaintiff.   (Glockner  a.  Hardwood  Mfg.  Co..  109  Minn.  30.  128 
N.W.  465.)   In  another  caae  it  waa  aUted  that  the  atetute  waa  merely  dedara. 
tory  of  the  common  law.   (BradeKm  a.  Lumber  Co..  91  Minn.  817. 97  N.W.  977.) 
^  view  waa  said  in  a  lafsr  caae  to  be  obiter,  and  that  the  atatute  did  in  fact 
change  the  common  law  so  aa  to  make  it  ne^nce  in  law  or  per  •«  not  to  guard 
dangerous  machinery  where  it  waa  praetieable  to  guard  K.  though  the  defenaea 
of  aanmied  riaka  and  contributory  ne^nee  remain  at  at  common  law  (David- 
aon  ».  Flour  City  Worka.  107  Minn.  17. 119  N.W.  483 ;  Glockner  ».  Hardwood 
Mfg.  Co..  109  Minn.  30. 123  N.W.  807).  and  the  plaintiff  waa  denied  rooovety  In  a 
case  m  which  it  waa  held  that  he  waa  guilty  of  contributory  negligence  in  uaing 
an  unguarded  aaw  wUeh  K  waa  oractieafale  to  guard.   (Parker  r.  Lumber  Co.. 
86  Minn.  13. 88  N.W.  261.)    It  „        however,  that  it  is  only  where  reasonable 
"atada  could  clearly  draw  but  one  conduaion  from  the  undiaputed  evidence  that 
the  question  of  asaumption  of  riaka  ahouM  be  dedded  by  the  eourt;  and  the 
mere  fact  that  a  workman  knew  that  a  dangerous  machine  was  not  guarded 
waa  not  auffldent  to  take  the  caae  from  the  jury  on  this  point.   (Shaver  t. 
Lumber  Co..  109  Minn.  876, 128  N.W.  1076.) 
B 


96         LAW  OF  TM  EMPLOYMBNT  OF  LABOR 

an  absolute  liabUity  for  injuries  raulting  from  aoiHjomplU«oe 
with  Its  provisions »  has  been  decUred  constitutional; «  ao  alw 
of  one  that  modifies  the  defense  by  providing  for  the  detennina- 
tion  of  degrees  of  negligence,  introducing  the  doctrine  ot  eom- 
parmtive  negligence.* 

Siwnow  47.  SHfiemt  Compliance. -While  an  inspector's 
certificate  of  approval  of  inataUation.  and  appliances  may  be 
admitted  aa  prima  facie  evidence  of  compliance  with  the  statute, 
It  IS  not  conclusive,  and  an  i^jurad  employee  may  overthrow 
the  presumption  raised  thereby  by  means  of  suitable  proof « 
In  the  construction  of  the  federal  stetute  relative  to  railroad 
equipment  and  maintenance,  the  Supreme  Court  has  enforced 
anile  of  strict  compliance.   Thus  it  is  not  sufficient  that  coup- 
lew  used  In  a  train  shaU  coupl*^  automatically  when  used  with 
others  of  the  same  make,  but  they  must  couple  automaticaUy 
with  those  m  use  in  the  train  as  actuaUy  constituted.*  Fur- 
thermore, the  height  fixed  for  drawbars  must  be  maintained 
at  the  employer's  own  hazard,  the  duty  being  an  absolute  one, 
and  not  being  capable  of  discharge  by  the  use  meraly  of  reason- 
able care,  or  by  its  delegation  to  competent  persons  to  whom  the 
necessary  supplies  are  furnished.   The  legir'  ure  having  pre- 
scribed conditions  of  appliances,  the  employer's  discretion  no 
longer  controls,  and  nothing  less  than  the  legislative  require- 

»  Wm.,  A.S.,  Mc.  1810. 

»  Qaukenbuah  t.  R.  Co.,  02  Wk.  411. 22  N.W.  174 

S  Jl't!.'*  *^  «>  See  per  contra.  Pauley 

oertilU»to  WM  had  to  reUeve  the  employer,  though  the  inrtnunentality  r«  fi«, 

««pe)  did  «.*  conform  to  the  law.  and  wa.  acce«lble  only  with 

n- -i.  •  Johnson  «.  Southern  P.  R.  Co.,  196  U.S.  1. 2fi  Sup.  Ct.  58. 


PHTUOAL  CONDITIONS  OF  IMPLOTMINT  99 


ments  will  be  regarded  as  reasonable  care  in  the  circumstances.  > 
It  ia  not  enough  to  have  proceeded  in  the  direction  of  a 
oompHance,  aa  by  providing  an  inadequate  light  when  the 
■talute  requir  one  that  wiU  distinctly  disclose  the  surround- 
ings.* And  it  has  been  heid  that  it  is  not  permitted  to  plead 
good  faith  where  an  inspection  has  actually  been  made  by  proper 
persons,  whose  judgment  was  that  a  working  place  did  not 
require  marking  as  dangerous,  though  subsequent  events  showed 
that  it  was  in  fact  dangerous.*  The  employer  is  liable  in  such 
ease  as  for  a  willful  vi(^tion  of  the  law,  smce  whether  or  not  an 
adequate  inspectiai  has  be«i  made  ia  not  witUn  the  province 
<tf  the  employer  to  decide,  but  is  a  question  for  tiie  jury. 

Sbction48.  Sob  o/Lt^(o£mpfe^.~  As  detrimental  to 
the  interests  of  the  parties  to  a  labor  contract,  the  establishment 
of  saloons  or  other  places  for  the  sale  of  intoxicants  at  or  near 
construction  camps  is  prohibited  in  one  state ;  *  and  this  law 
has  been  held  to  be  a  reasonable  exercise  of  the  police  power  of 
the  state  in  view  of  the  mischief  likely  to  follow  the  activities  of 
itinmnt  vendm  of  intradoants.*  Other  statutes  authorize 
emidoyns  to  forbid  the  sale  <d  mtoadcants  to  designated  em- 
I^oyees,*  or  prohibit  the  use  of  intmdcants  on  any  engine,  car, 
or  train  propelled  by  steam  or  electricity,  except  in  a  buifet  or 
dimng  car ; '  or  forbid  the  bringing  of  intoxicants  into  any  mine, 
smelter,  machine  shop,  or  sawmill.' 

« St.  Loub.  I.  M.  A  S.  R.  Co.  t.  Tajdor,  210  U.S.  281. 28  Sup.  Ct.  816. 

•  Eldorado  Coal  &  Coke  Co.  v.  Swan,  227  lU.  586,  81  N.B.  601. 

•  Aetitua  ».  Coal  Co.,  246  111.  32,  92  N.E.  679. 

•  Cal..  Acts  1909.  ch.  413.  •  Ex  parte  King.  187  Cal.  161, 106  Pao.  678. 

•  Minn.,  Aeta  1909,  ch.  198 ;  Maaa..  ILL.,  oh.  100,  aeo.  63 ;  Ohio.  Gw.  Code, 
MO.  6203:  S.  Dak..  Aeta  1S03.  oh.  165. 

»  Ohio,  Gen.  Codo.  aee.  13.196.  •  Wyo..  Aeta  1000,  eh.  82. 


CHAPTBR  V 


1IMPU>TMB1«T  OF  WOION  AND  OHILDHnf 

SwmoN  49.  Special  R«(nJation».  —  l%  k  an  Inddent  of 
modern  industry  that  a  special  body  oflawi  hai  been  fonnulated 

relating  to  the  employment  of  women  and  children.  The 
common  Uw  left  tnem  or  those  who  had  them  under  legal  con. 
trol  to  make  such  contracts  of  employment  as  they  saw  fit,  or 
rather,  perhaps,  as  they  were  constrained  to  make  from  the 
force  of  dreumrtMUMi.  At  the  presen  time,  in  nearly  every 
jurisdietbn  are  to  be  found  lawe  fixing  the  age  below  which 
diildren  cannot  be  employed,  the  linL  rangin/r^  from  twelve  to 
sixteen  years.  Exemption  may  be  made  it  oaaea  of  orphanage, 
of  poverty,  or  of  dependence  of  parents ;  also  as  revuda  sped^ 
fied  employments,  such  as  farm  Ubor  and  the  canning 
and  preserving  of  fruits.   Labor  in  mines  is  prohibited  for 
women  and  ohUdren  in  a  number  of  states,  the  age  limit  for 
dilldrea  frequently  being  higher  in  this  than  in  other  em- 
ploymente.   Faotories  and  workshops,  or  these  and  mercantile 
establishments,  are  most  frequently  derignated  as  forbidden 
places  of  employment  for  children  in  industry;  while  stiU  more 
numerous  laws  prohibit  classes  of  occupations,  designated  as 
injurious  or  immoral,  such  as  employment  for  acrobatic  exhi- 
bitions, as  pedlars,  in  barrooms,  for  mendicant  purposes,  and 
the  like.  There  is  sometimes  a  list  of  designated  dangerous 

100 


■lIFIiOTMBNT  OF  WOlllN  AND 


KIN  101 


factory  employmentB,  including  the  cleaning  of  moving  machin- 
•ly,  tiw  oporation  of  elevators,  and  of  certain  kinds  of  rolls, 
praHii,ele.  In  ■omegtat*  the*  laws  include  females  in  a  part 
or  aU  of  their  prahibttioai,  l»wi  of  thli  elaM  being  in  effect 
■pedal  extenriom  of  tho  lain  idatiiig  to  tho  Impeetkn  of  fao- 
tories  and  workshops. 

Numerous  laws  have  been  enacted  restricting  absolutely  the 
hours  of  labor  of  chUdren,*  or  of  women,'  or  of  Loth,»  laws  Oi  the 
third  oi<*a8  being  most  common.  These  laws  have  a  double 
aspect,  the  pubUc  being  concerned  in  the  question  of  a  healthful 
eitiaenahip,  ai  well  as  in  the  protection  of  classes  of  individuals 
who  are  in  a  mom  under  the  particular  protection  of  the  stote.* 
TimitalloM  may  aho  be  made  in  the  matter  of  night  work.  In 
some  states  eight  hours  Is  the  maximum  day**  work  aUowed  for 
children,*  while  a  more  common  limit  is  nine  or  ten  hours,  reach- 
ing as  high  as  eleven  in  one  instance.*  The  range  of  night  work 
prohibited  also  varies,  as  from  six  p.m.  to  seven  a.m.,'  seven  p.m. 
to  six  A.M.,»  seven  p.m.  to  seven  a.m.,«  to  the  less  favorable 
limit  of  from  nine  p.m.  to  six  a.m.,*"  or  even  ten  p.m.  to  six  a.m." 

The  required  proof  of  age  is  usuaUy  either  by  affidavit  or 
certificate,  indudhig  in  the  latter  case  a  transcript  of  the  birth, 

« CW.,  A«te  lfl06,  eh.  18 ;  Ind..  A.8..  aeo.  7087a ;  Ala..  Code.  aeo.  6430. 
»  Ore..  Acta  1907.  ch.  200 ;  Waah..  Acta  1901.  ch.  68. 
^Maa...  Acta  1909.  oh.  614.  aM>.  48 ;  Conn..  Acta  1907.  oh.  261 ;  N  J..  Qi..  p. 

t  J  S'^l  ^*'*''  ^  :  Com.    Hanulton  Mfg.  Co. 

^STofi  '  3«  N.E.  4:  State  ..  Shorey.  48 

vwa.  896,  86  Pac.  8Si. 

I V  r*"  1.!^ •■  Act!  1907.  eh.  66. 

*        Aeto  1907,  oh.  463. 

» Mich..  Acta  1901.  ch.  113 ;  Ore.,  Aeto  190B.  eh.  208. 
»I<Wio»Aetol907,p.a48.  "  Cal..  Aeto  1907.  oh,  M4. 


102        LAW  OP  THE  EMPLOYMENT  OF  LABOR 


school  records,  or  other  docummts.  The  icgolations  m  to 

employment  sometimes  vary  for  the  time  during  the  vacation 
of  school  from  those  in  force  during  the  school  term,  and  for 
illiterates  as  compared  with  literate  children.  The  detail  and 
variety  of  the  laws  of  this  class,  and  the  constant  modification 
of  them  in  the  various  states,  make  an  analytical  account  of  them 
impracticable  in  a  work  that  contemplates  only  a  general  survey 
of  the  laws  relating  to  labor.* 

The  rig^t  of  tite  state  to  protect  children  in  employment  is 
practically  univeisally  recognised  in  respect  of  all  the  points 
named.*  It  has  been  said  that  "so  far  as  such  legulations 
control  and  limit  the  powers  of  minors  to  contract  for  labor, 
there  never  has  been  and  never  can  be  any  question  as  to  their 
constitutionality." »   Laws  affecting  safety  and  sanitation  in 
establishments  where  women  are  employed  are  likewise  gen- 
erally approved ;  *  but  laws  limiting  the  hours  of  labor  of  women 
have  been  hdd  to  be  unconstitutional  in  a  few  instances,  on  the 
ground  that  they  interfered  with  the  freedom  of  dtisens  to 
contract,  infringing  on  the  present-day  equality  of  ri^ts  of 
women  with  those  of  men.'  In  a  later  case  in  one  of  these  courts 
a  law  limiting  the  labor  of  women  in  certain  employments  to  ten 

>  See.  for  example.  III.,  R.8.,  ch.  48,  seca.  2O-20m ;  Mus.,  Acta  1009,  oh.  614, 
sees.  66-77 ;  Ore.,  Acta  1906.  ch.  208;  Minn.,  Aete  1907.  eh.  299,  Aoto  1909 
ch.  499 ;  N.Y..  C.L.,  ch.  31.  sees.  60-93. 

»  Ex  parte  Spencer.  149  Cal.  396.  86  Pac.  896 ;  Bryant  v.  SldUnuui  Hardware 
Co..  7«  N.J.L.  45.  69  AU.  23;  StHOM  t.  Mfg.  Co.,  147  N.C.  566, 61  S.E.  826; 
State  «.  Shorey,  rupra. 

•  1  Tieder  an.  State  and  Fedenl  Contrrf,  p.  336,  citing  People  r.  Ewer,  tupra. 

•  Wenham  t .  8tot»,  65  Nebr.  894, 01  N.W.  421 ;  Com.  t.  Beatty.  15  Super.  Ct 

(Pb.)  5. 

•  Ritchie  V.  Pe«  pie,  165  lU.  08, 40  N.B.  464  .•  Ptople  t.  WOIianM.  180  N.Y  181 
81N.E.778.  8«eateoTiademaa.)(.e.«^ 


BBfPLOYMENT  OP  WOMEN  AND  CHILDRBN  103 

houn  per  day  1  has  been  held  constitutional  as  a  health  regu- 
lation for  the  good  of  the  race.*  In  the  WiUiams  case,  a  law 
prdiibituig  nii^t  work  by  women  was  declared  unconstitutional 
by  a  N3W  York  court  on  the  ground  that  it  was  not  a  health 
law,  but  a  labor  law,  and  unduly  discriminatory  between  citizens, 
the  court  remarking  that  woman  is  no  more  the  ward  of  the 
state  than  is  man.   The  act  was  specifically  condemned 
because  it  not  only  sought  to  regulate  the  hours  of  labor  of 
Wiunen,  but  it  absolutely  prohibited  her  employment  for  any 
time,  however  brief,  betwe^  certain  hours  of  the  night.  But 
even  the  oonoession  indicated  by  this  statonrait  would 
not  save  the  law  from  condemnation  by  a  court  that 
regarded  the  liberty  of  contract  as  the  paramount  con- 
sideration.   In  most  courts,'  including  the  Supreme  Court 
of  the  United  States,  however,  the  view  is  taken  that  laws 
of  this  nature  are  within  the  police  power  of  the  state  as  health 
r^iulations,  sex  distinctions  warranting  a  discrimination  between 
men  and  women  engaged  in  like  occupations,  "having  in  view 
not  merely  her  own  health,  but  the  welfare  of  the  race."  *  A 
law  luniting  the  hours  of  labor  of  females  in  industrial  employ- 
ments, not  appl3ring  to  work  in  canning  establishments,  was 
said  not  to  be  unconstitutional  by  reason  of  this  exception.* 
The  same  principle  that  supports  the  foregoing  laws  would 
support  the  laws  found  in  a  majority  of  the  states  directing 
employers  to  furnish  seats  for  female  employees  and  to  permit 

« 111.,  Acts  1909,  p.  212. 

•  W.  C.  Ritchie  <fc  Co.  e.  Wayman,  244  HI.  609,  91  N.E.  696. 

•Com.  ».  Hamilton  Mfg.  Co.,  aupn;  Wenham  t.  State,  tupra;  State  i. 
Buchanan,  29  Wadi.  602, 70  Pao.  6 ;  State  t.  Muller,  48  Ore.  252, 85  Pac.  8W; 
MuUer  t.  State,  tuiira.  4  MuUer  v.  State,  tupra. 

•  Whhejr  t.  Bloea,  163  Midi.  419, 128  N. W.  913. 


104        LAW  OP  THE  EMPLOYMENT  OF  LABOR 


their  reasonable  use.*  One  state  has  such  a  law  raquiring  seats 

to  be  supplied  for  the  use  of  children.' 

Section  50.  Effect  of  Unlawful  Employment  on  the  Employer's 
lAabaUy.  —  The  effect  on  the  employer's  liability  of  his  dis- 
regard of  the  laws  forbidding  the  employment  of  children  is  on 
much  the  same  footing  with  that  of  other  violations  of  statutory 
provisions  affecting  employment  oooditions.*  Thus  some 
courts  hold  that  the  ani^oymait  ci  a  child  untter  statutory  age, 
who  is  iigm«d  in  the  course  of  his  prohibited  employment,  is 
negligenct;  per  ee  on  the  part  of  the  employer; <  while  in  others 
it  is  r^;arded  only  as  evidence  of  negligence."  In  the  tormet 
view,  the  unlawful  employment  resulting  in  injury  supports  an 
action  for  damages,  in  which  it  hag  frequently  been  held  that  the 
defenses  <rf  assumed  risks  and  contributory  negligence,  cannot 
be  offered;  •  and  even  whwe  it  is  only  eiddence  of  negligence,  it 
has  been  said  that  if  the  jury  finds  from  all  the  evidence  that  the 
employment  was  negligence,  and  that  injury  resulted  there- 
from, there  can  and  should  be  a  recovery  in  the  case; »  ^diile  in 
the  Marino  case,  the  court  refused  to  allow  the  defenses  of 
assumed  risks  and  contributory  negligence.    In  another  juris- 
diction, it  was  made  the  ground  of  reversal  of  the  judgment  of 

« AU.,  Code.  MO.  6857 ;  Conn.,  CS.,  aeo.  4703 ;  Iow»,  Code.  mo.  40M :  ftu. 
B.P.DiCnP.903. 

»  Okla..  Acta  1800.  p.  629.  sec.  6.  »  See  sec.  46. 

•  Leathers  ».  Tobacco  Co.,  144  N.C.  330,  67  8.E.  11 ;  American  Car  Co.  ». 
Armentraut.  214  III.  609,  73  N.E.  786;  Smith's  Admr.  t.  Coid  A  Iron  Co.,  188 
Ky.  671. 117  S.W.  280 ;  Lore  t.  Mfg.  Co..  160  Mo.  608.  61  S.  W.  678. 

•  SteUe  f .  Jaeger  Automatic  Machine  Co.,  220  Pa.  617, 69  Atl.  11 16 ;  Marin.)  t. 
Lehmaier,  173  N.Y.  630. 66  N.E.  672. 

•  But  see  p«r  emUra,  Darsam  ».  Kohlmann,  123  La.  164, 48  So.  781. 

f  8«AI«  «.  Jmsw  Automatie  Maehiae  Co.,  sttpra;  see  tin  Mune  case,  225 
Pa.  348,  74  Atl.  216,  and  Lenahan  «.  PitUton  Coal  Miaias  Co.,  SM  Pa.  Sll,  e? 
Atl.  642,  in  which  both  defenaes  were  diaallowcd. 


■MPL0TM8NT  OF  WOMEN  AND  CHILDREN  106 

a  kmer  court  beowise  the  trial  judge  had  held  that  the  doc- 
trine of  aamuiMd  rides  had  no  application  in  a  case  in  which 
a  ehad  thirteen  years  of  age  was  mjured  in  the  course  of  his 
employment;  ^  while  m  a  rimilar  case  the  decision  of  the  same 
judge  was  to  the  effect  that  a  child  under  fourteen  years  of  age 
is  presumed  to  be  incapable  of  assuming  the  risks  of  employ- 
ment, though  the  matter  is  one  for  the  jury.*  In  neither  of  the 
last  two  cases  was  a  statute  violated,  the  presumption  being  one 
of  common  law.  Where  a  statute  prohibits  the  employment  of 
a  child  under  a  fixed  age,  the  child's  or  his  parent's  misrepresen- 
tation is  no  defense  in  a^i  action  against  the  employer  for  injury 
resulting  from  the  unlawful  employment,'  and  evidently  a  con- 
trary ruling  would  allow  unKmited  violation  of  the  law.  The 
tact  that  a  child  had  been  employed  before  the  law  was  enacted 
in  no  way  removes  him  from  its  operation  when  it  comes  into 
effect.* 

The  fact  of  tie  subordmation  of  the  child  to  the  parent  and 
of  the  parent's  interest  in  the  child's  earnings  gives  rise  to  the 
rule  of  law  that  where  mjury  results  to  the  chUd,  the  parent  may 
recover  damages  for  the  loes  he  himself  suffers  on  account  of  the 
mterruption  to  or  diminution  of  the  chad's  earning  capacity, 
the  recovery  bemg  Umited  in  this  respect  to  the  value  of  such 
services  during  minority.*  The  parent  in  making  the  contract 
assumes  the  risks  of  the  particuhtf  employment  for  which  the 

« Alenndcr  ».  CMoUnm  MnU,  8S  8.C.  17. 64  8.E.  914. 
»  Owens  r.  Laurens  Cotton  Mills,  83  S.C.  19,  64  S.E.  916. 

•  Kirkham    Wheeler-Osgood  Co..  39  WmH.  418. 81  Pm.  869 ;  Ameiloan  Car 
Co.  9.  Annentraut,  tupra. 

*  Stehle  ».  AutomaUo  Machine  Co.,  225  Pa.  348,  74  Atl.  216 


108        LAW  OF  THB  EMPLOYHBNT  OP  LABOR 


contract  was  made,  but  of  that  only;  so  that  if  the  child  is 
directed  to  perform  other  duties  and  is  injured  thereby,  the  de- 
fense of  assumed  risks  wiU  not  be  aUowed  against  the  parent's 
claim.»  This  claim  and  recovery  by  the  parent  for  damages 
is  independent  of  the  chUd's  right  to  recover  for  personal  in- 
juries, and  separate  recoveries  may  be  had  for  the  two  elements 
of  damage.* 

Section  51.  Wages  of  Married  Women  and  Minors.  —  At 
common  law  a  married  woman  entering  service  was  assumed  to 
be  hired  out  by  her  husband,  so  that  her  earnings  belonged  to 
him;  but  most  states  now  give  married  women  the  right  to 
their  earnings  as  their  individual  property.'  So  also  of  mmors, 
who  are  unable  to  make  valid  contracts,  generaUy  speaking, 
and  whose  earnings  belong  to  the  parent  unless  it  can  be  made  to 
appear  that  they  have  been  emancipated,  or  that  the  parent  has 
failed  in  the  discharge  of  the  parental  duties.    Legislation  has 
modified  these  rules  of  the  common  law  in  a  number  of  states, 
so  that  the  payment  of  their  earnings  to  minors  is  valid  unless 
or  unta  notice  is  given  by  the  parent  or  guardian  that  he  claims 
such  earnings.*  One  state  •  provides  that  the  wages  of  a  minor 
shall  be  exempt  from  garnishment  or  other  process  on  account 
of  the  debts  of  the  parent. 

In  this  connect  a  may  be  mentioned  laws  found  in  a  few 
states  providing  penalties  for  able-bodied  parents  who  hire  out 


,«J  ^^J'  ••  ^         ;  BnMwen  •.  Cotton  Ofl  Mfll  Co..  7  Ga.  App. 

107,  60  S.E*  539. 

»  Stehle  V.  Jaeger  Automatic  Machine  Co.,  226  Pa.  348,  74  Atl.  218. 
^  •  lU.,  R.S..  ch.  88,  «».  7;  Ma«.,  R.L.,  oh.  183.  aee.  4 ;  N.Y.,  C.L.,  ch.  14,  mo. 

«C«I.,  CiT.  Code,  Hc.  212;  Minn..  R.L..  sec.  1812;  N.Y.,  C.L.,  ch.  14;  tec 

'V*.,  Code,  aee.  ««53o. 


EMPLOYMENT  OF  WOMEN  AND  CHILDREN  107 


their  minor  children  and  live  m  idleness  on  thdr  earnings ; » the 
hiring  out  of  wives  is  coupled  with  that  of  children  in  Louisiana 
and  North  Carolina.  The  laws  generally  provide  for  the  pun- 
ishment of  the  delinquent  parent  as  a  vagrant. 

Laws  of  which  it  must  be  said  that  their  reason  and  validity 
seem  doubtful  are  found  in  a  very  few  jurisdictions  making 
special  provisions  relative  to  the  wages  of  women;  as,  for  m- 
stance,  one  prohibiting  deductions  from  their  wages  on  account 
of  the  stoppage  of  machinery  unless  they  are  allowed  to  leave 
the  factory,*  or  one  that  declares  no  property  exempt  in  case  of 
a  judgment  for  wages  earned  by  a  female,  if  the  judgment  and 
costs  do  not  exceed  a  specified  sum ; »  special  allowances  of  costs 
are  atao  made.  No  good  reason  appears  why  distinctions 
should  be  made  between  adult  females  and  other  adults  in  regard 
to  such  matters. 

•Al...  Code,  we.  7843;  Qa..  Acts  1906.  p.  109;  I*.,  Acts  1904,  No.  178- 
Miss.,  Code,  sec.  5056 ;  N.C..  Rev.,  sec.  3740 ;  Tenn..  Aete  1907.  eh.  206 ;  Tesaa 
Acts  1909.  ch.  59;  Va..  Code.  sec.  884. 

*  ZvIms..  Aeto  1000,  ch.  514,  see.  119. 

•Mich.,  C.L..  sec.  900;  N.Y.,  Code  Civ.  Pro.  sec.  3131.    The  New  York 
Uw  applies  to  Brooklyn  only,  and  givea  execution  against  the  person. 


CHAPTER  VI 

BwnaonoNB  on  watpvanm 

Section  52.  Examination,  Registration,  etc.,  of  Workmen.  — 
The  conditions  and  requirements  of  certain  occupations  are 
such  that  the  welfare  of  fellow  workmen  or  of  the  public  or  of 
both  is  dependent  on  the  experience  and  technical  ability  of  the 
emidoyee.  Thus  in  mining,  it  has  been  declared  the  policy  of 
the  state  in  several  jurisdictions  to  require  certain  empl<^yee8, 
M  managers,  mine  foremen,  fire  bosses,  and  hoisting  enpnenra, 
to  prove  their  qualifications  by  passing  an  examination  and 
givmg  proof  of  experience,  after  which  a  certificate  is  issued, 
without  which  employment  in  the  designated  capacity  is  pro- 
hibited.*  Such  laws  also  penalize  an  employer  who  hires 
employees  of  these  classes  without  their  having  the  proper  creden- 
tiab.  The  secraid  dass  of  laws  named,  i.e .  affecting  the  public 
miy,  k  reinesoited  by  laws  requiring  barbers  to  be  examined 
and  procure  licenses;*  while  both  the  fellow  servant  and  the 
public  are  interested  in  the  efficiency  <rf  railway  employees. 
Laws  relating  to  them  may  contemplate,  among  other  qualifi- 
cations, physical  incapacity,  as  color  blindness  of  employees 
whose  duties  require  them  to  distinguish  signals ; »  or  they  may 

« AU.,  Code,  Mos.  1006,  1007;  lU.,  Aote  1907,  p.  387;  Ind..  Aeta  1906.  eh. 
60,  not.  21.  23;  Mo.,  Aeta  1908,  p.  243. 

*  Md.,  Aeta  1004,  ch.  226 ;  Wia.,  A.S.,  Moa.  1686-18  to  1686-80;  MUtu  Aato 
1899,  No.  212 ;  Ore.,  Acta  1903,  p.  27. 

•  Ala..  Code,  aeca.  6481-6488,  7666;  IfMi..  Aeta  1M6»  oh.  468.  Ft  II,  lae. 
179;  Ohio,  Gao.  Coda,  aao.  13.648. 

106 


MBBTBIOnONB  ON  IMFL0TI18  lOQ 


look  mer^  to  the  technical  skill  and  experience  needed  by  a 
tdegnqrii  operator  whose  duties  are  emineeted  with  the  move- 
ments'of  trains.' 

Otiier  classes  of  employees  ccsning  within  regulaUoos  of  this 
sort  are  horseshoers,*  plumbers,*  electricians/  elevator  opera- 
tors,* stationary  firemen,*  steam  engineers,'  street  railway 
employees,*  and,  in  some  states,  all  coal  miners.* 

Section  53.  Status  of  Certified  Employees.  —  The  objects  in 
view  in  the  enactment  of  these  laws  are  various,  as  their  wide 
range  would  indicate.  That  foremen  m  charge  of  gaseous  mines 
diould  be  oraipetent,  or  that  mine  managers  and  other  &aa- 
I^oyees  having  spedal  duties  a£Fecting  safety  should  be  able  to 
prove  their  fitness  for  their  positions  is  no  less  important  than 
that  places  and  appliances  should  conform  to  a  reasonable 
sti  ard  of  safety."  Courts  have  taken  radically  dififerent 
views  as  to  the  status  of  such  certified  employees  as  the  law 
compels  to  be  put  in  charge  of  work  or  places.  Thus,  the  law 
of  1881  of  the  state  of  Pennsylvania,  requiring  the  emplojonent 
of  owtified  mme  foremen,  contained  the  provision  that  for  m- 

*  Oik,  Code,  MO.  2237. 

«  Colo.,  A.8.,  sees.  2801t-2801i ;  Minn.,  R.L.,  sees.  2354-2356. 
*Cal.,  Sima'  G.L.,  Noa.  2838,  2830;  lU.,  R.S.,  oh.  24.  aeoik  49»-604;  Maw.. 
BJi..  ch.  103 :  Pa.,  Aots  190B,  No.  067. 

*  M--      R.L.,  Mca.  2357-2804  {  La..  Aeta  1908,  No.  178. 

.  *  L.,  Mc.  761. 

*  ^        \.L.,  eh.  102,  wea.  78-S8:  Mont.,  V6L  Code.  aaea.  500  il 
Actr  32. 

'i      Code,  aee.  7091;  Minn.,  R.L.,  aeca.  2174,  M  •««.;  Ohio,  Acta  1910. 
p.  361 ;  Pa.,  B.'  Dig.,  p.  635.  Acta  1905,  No.  75. 

*  N.Y.,  Con.  L.,  Ch.  49,  aec.  63 ;  Waah.,  Acta  1901,  Ch.  103. 

*  lU.,  Acta  1909,  p.  284 ;  Pa.,  B.  Dig.,  p.  448  (in  anthradte  ndBea  only). 

»  ^inhnington  Star  Min.  Co.  v.  Fulton,  205  U.S.  60, 27  Sup.  Ct.  412 ;  Henrietta 
Coal  Co.  t.  Martin.  221  lU.  460,  77  N.E.  902 ;  Stete  •.  Muriin,  137  Mo.  297, 38 
B.W.  933. 


110        LAW  OF  THE  SMPLOYMBNT  Of  LABOB 


juries  to  penoo  or  property  esuied  by  violatioia  of  the  Mt  by 
such  mine  foremen,  the  company  shoukl  be  liaUe  in  «i>w»figfff 
In  the  trial  of  an  action  under  this  provisiim,  *  the  supreme  court 

of  the  state  declared  this  provision  unconstitutional,  holding 
that  the  compulsory  employment  of  a  certified  employee  took 
out  of  the  hands  of  the  employer  his  discretion  and  therefore  his 
responsibility  in  the  matter.  The  mine  foreman  was  held  to 
be  the  r^nresentative  of  the  state,  for  whose  incompetency,  if 
any,  the  onployer  oould  not  be  made  locally  lesprariUe.  He 
was  also  held  to  be  but  a  fellow  servant  of  the  miners,  and  in  no 
sense  the  employer's  vice-principal,  the  declaration  of  the  stat- 
ute to  the  contrary  notwithstanding.  This  view  is  followed 
in  other  jurisdictions,  the  court  stating  in  one  instance  that 
when  the  employer  had  complied  with  the  law  by  employing  a 
certified  mining  boss,  no  liability  attaches  for  the  tortious  and 
nei^nt  acts  of  the  latter.* 

The  divergency  of  views  held  in  different  jurisdictions  in 
regard  to  the  common  law  doctrine  of  vice-prindpalship  k  noted 
elscvhere,*  and  it  is  but  natural  that  this  divergence  should 
afifect  the  construction  of  statutes  that  are  quite  similar  in  phrase- 
ology. The  Illinois  doctrine  of  vice-principalship  differs  from 
that  accepted  in  Pennsylvania,  and  in  a  case  in  which  the  same 
pomt  as  that  above  discussed  was  being  considered  by  the  Illinois 
supreme  court  under  a  law  of  practically  the  same  form,  the 
court  reviewed  the  Durkm  and  Williams  cases,  and  rejected  the 

» Durldn  ».  KingBton  Coal  Co.,  171  Pa.  183, 33  Att.  287.  See  alao  Ooideo  t. 
Coal  Co.  226  P».  164.  73  Atl.  1108. 

•  Waiiams  e.  Thacker  Coal  A,  Coke  Co.,  44  W.  Va.  699,30  8.E.  107,  citing 
14  A.  A  E.  Enc.  Law,  809;  McMiUan*.  Coal  A  Coke  Co.,  61  W.  Va.  631  67 
S.E.  129 ;  Coal  Co.  •.  Lamb,  6  Colo.  App.  256, 40  Fae.  261. 

*See8e«.g3-88. 


RESTRICTIONS  ON  EMPLOYEES  HI 


doctrine  therein  laid  down,  holding  that  the  duties  of  inspection 
and  management  were  the  employer's,  which  he  might  himself 
perform  if  qualified,  otherwise  to  be  performed  through  some 
o  <  ist  person  who  has  been  able  to  obtain  a  certificate ;  but  being 
■till  the  iDMter's  duties,  he  is  responsible  for  the  negligent  per- 
totmaMkoe  of  them,  whethmr  by  himself  or  by  his  agent.^  The 
faet  that  he  is  required  to  emirfoy  a  managw  who  is  certified  by 
the  state  was  held  to  be  without  significance  as  relieving  him 
from  responsibility,  as  the  employer  was  under  no  obligation 
to  employ  or  retain  any  particular  individual,  and  could  dis- 
charge for  cause  of  incompetence  or  otherwise,  the  effect  of  the 
law  being  simply  to  eliminate  the  obviously  unfit,  and  to  form 
a  class  from  which  the  employer  might  reasonably  expect  to 
procure  a  fit  representative  in  this  respect,  but  not  to  enable  him 
to  shift  his  reqxnisibility  to  his  employees  by  reason  o!  the  act.* 
This  view  and  c(»struotion  of  the  law  were  adopted  by  the 
Supreme  Cou      »  a  case »  in  which  this  point  was  under  con- 
sideration in        tion  arising  under  the  Illinois  statute,  and  it 
seems  clear  that  such  a  rule  is  both  better  law  and  better  reason. 
The  statute  may  explicitly  put  the  matter  at  rest  by  declaring 
that  the  manager  or  foreman  provided  for  by  the  act  shall  be 
r^Earded  as  the  representative  of  the  mine  owner,  and  not  as 
the  fellow  worianan  of  the  miners,*  such  an  enactment  being 
ctearly  within  the  power  of  the  state  l^pslature.* 

« HenrietU  Coal  Co. »,  Martin,  221  m.  460,  77  N.E.  902. 

•  See  further  Consoi.  Coal  Co.  v.  Seniger,  179  111.  370,  53  N.E.  733  ;  Smith  v. 
Dayton  Coal  &  Iron  Co.,  115  Tenn.  643,  92  S.W.  62 ;  PoU  t.  Coal  Co.,  (Iowa) 
127  N.W.  1105. 

•  WUmington  Star  Min.  Co.  t.  Fultoo.  20S       60, 27  Sup.  Ct.  412. 

*  Tenn..  Acta  1907,  ch.  S40. 

*  Wilmington  Star  Min.  Co.  v.  Fulton,  tupra;  Western  U.  Tel.  Co.  *.  Milling 
Co.,  218  U.S.  406, 31  Sup.  Ct.  69.  In  the  Utter  oaae  it  was  said  that "  The  oom- 


112       LAW  or  TBI  niPLOTlCINT  OF  LABOB 

of  Ftarnqrhruift  lequiriiig  att  minen  in 
oertifioatat  of  oompetenoy  hu  been  jndioiAqy  cnfoned  ai  a 
measure  to  secure  the  safety  of  the  emfdoyeet.* 
Laws  classifying  stationary  engineers  and  nquiriiig  itan  to 

procure  licenses  are  held  constitutional « on  the  ground  that  they 
are  a  police  regulation  designed  to  secure  public  safety  by  re- 
quiring  only  competent  persons  to  be  entrusted  with  the  control 
of  dangerous  and  widely  used  instrumentaUties ;  though  a  kw 
of  Ohio,  providing  that  if  on  eiamination  an  applicant  was 
found  to  be  trastworihy  and  competent,  a  Hcense  should  issue,* 
was  declared  unconstitutional  as  interfering  with  the  rights  of 
citizens  and  affecting  their  equality,  as  well  as  conferring  auto- 
cratic power  on  the  examiner,  for  whom  the  kgislatura  had  fixed 
no  standard/ 

In  the  matter  of  railroad  employees,  the  question  of  uncon- 
stitutional interference  with  interstate  commerce  was  raised  in 
a  case  that  arose  mdxx  an  earHer  statute  of  Alabama  that  ap- 
plied  only  to  locomotive  engineers.  The  supreme  court  of  the 
state  and  of  the  United  SUtes  overruled  the  contention,  holding 
that  the  law  was  but  a  reasonable  exercise  of  the  poUce  power  of 
the  state,  and  not  a  commerce  law.»  The  present  law  extends 

iiionl.wdHiiotlxw»..p,rt«rftheUw.ofthert.te.ofit.ownyi^^^  Itha, 
been  adopted  by  conrtitutional  provision,  by  statute  or  deciiiion  bat 
however  adopted,  it  ezpreesea  the  poUoy  of  the  state  for  the  time  beiiJ  ud 
u  subject  to  change  by  the  power  that  adopted  ft." 

»  Com.  •.  Shaleen,  216  Pa.  695.  64  Atl.  797. 
n  *^*"J"  ^  Minn.  453.  68  N.W.  77;  Hyvonen     Hector  Iron 

Co  108Mmn.331.115N.W.167.  •  Act- 1900.  p.  88. 

*  Harmon  v.  r-^-ite,  66  Ohio  St.  249, 64  N.E.  117 
a  Strte.  81  Ata.  279. 3  So.  829 :  Smith    Alabama.  124  U.S.  465. 


URBIOnom  ON  IICPLOTIIB  118 

the  tait  at  to  color  blindness  to  trainmen,  trackmen,  switchmen, 
and  train  djspatoliers,  and  has  been  construed  in  the  same 
BMiUMr  M  tbe  mora  United  law.*  A  provision  in  the  earlier 

law  that  lequiwi  the  railTOid  oompany  to  pay  the  fees  for  the 
examinations  waa  dedand  unooostitutioQal     the  atate  oourt,' 
though  the  Supreme  Court  of  the  United  States*  iqriield  hi  ita 
entirety  a  statute  embodying  this  provision  as  to  the  payment 
of  fees.  A  law  prescribing  the  length  and  grade  of  service  of 
various  classes  of  employees  prior  to  their  appointment  or  pro- 
motion <  was  declared  unconstitutional  by  the  supreme  court  of 
Ohio*  in  a  memonndom  adopting  the  opinion  of  the  court 
below,*  in  iHiieh  it  waa  said  that  the  kw  affected  unequaUy 
employees  in  the  same  daaa  of  aervioe.  and  waa  therefore  repug- 
nant to  the  constitution ;  but  whether  or  not  in  any  particular 
instance  a  law  of  this  class  is  aptly  drawn,  or  proper  proviaioDa  are 
incorporated  for  its  enforcement,  it  does  not  seem  open  to  ques- 
tion  that  the  power  of  the  state  cannot  be  held  t .  fall  short  of 
prer^ribmg  standards  of  ability  and  competence  in  matten 
affecting  the  public  welfare. 

Within  these  reaaona  fall  the  kws  which  restrict  the  practice 
of  plumbing  to  workmen  who  have  been  able  to  prove  compe- 
tency and  secure  licenses  to  proaeeute  their  trade;'  though  it  has 
been  held  that  inspection  and  not  a  restrictive  licensing  Uiw  is  the 
proper  method  of  reaching  the  desired  end,*  a  law  of  the  Utter 

«N«ihTille,  ete..  R.  Co.,    Alabama.  128  U.S.  96. 9  Sup.  Ct.  38. 
LmOMymt «  N.  R.  Co.    Baldwin.  85  AU.  fll9.  6  So.  311. 
'  Nashville,  etc.  R.  Co.  v.  atipn. 

*  Ohio.  AcU  1893.  p.  20. 

i**^!  r-  "to-.  R.  Co.,  70  Ohio  St.  606.  72  N.E.  1166. 

•  2C  Ohio  C.  C.  Rep.  348. 

88^M'iSr/i/"'^"'       ™-         ^  D*"**"-^     Sf  te.  77  Md. 

«w.*lAH.416.  •St.tet.SinHh.4aWMlL237.84Pac.861. 
I 


114       hA.W  OF  TBI  SMPLOTMBNT  OF  LABOR 


elMi  beinf  in  this  c^m  dedared  uneoostitiitioiua.  How  for 
luch  laws  may  properly  go  is,  indeed, «  queetion  not  yet  dedded, 

nor  is  it  easy  of  decision.  TTje  law  relating  to  tlie  licensing  of 
horseshoers,  for  instance,  has  repeatedly  been  held  to  be  an 
unwarranted  and  arbitrary  interference  with  the  liberty  of  the 
citisen  and  his  right  of  private  property.'  The  same  language 
was  used  in  a  case  in  which  a  law  licensing  plumbers  was  under 
oonsideratioii,*  though  such  a  view  is  without  doubt  opposed 
to  the  hitter  qiinicm,  since  such  an  onployment  too  closely 
affects  the  welfare  ci  the  puUie  to  demand  that  it  not  be 
subject  to  proper  restrictions  as  to  its  practice.' 

In  the  case  of  barbers  there  is  usually  coupled  with  the  ques- 
tion of  skill  that  of  personal  freedom  from  contagious  and  in- 
fectious diseases,  and  of  such  knowledge  of  the  more  common 
affections  of  the  skin  as  will  enable  them  to  shave  one  suffering 
from  than  witibout  aggravating  their  «x»dition;  so  that  there 
is  here  dearly  in  view  the  protection  of  the  public  health.  The 
board  of  examiners  is  also  frequently  a  board  of  inspection  as 
to  the  conditions  maintained  in  shops.  WiiMa  the  range  of 
health  provisions,  these  laws  command  support  under  the  police 
power  of  the  state.*  Where,  however,  under  the  guise  of  regu- 
lation, provisions  are  introduced  whose  apparent  intent  is  to 
restrict  the  practice  of  the  trade  by  unreasonable  requirements 
and  limitations,  such  provisions  will  be  declared  uncon- 

>  BeaMtte  ».  People,  103  IB.  334.  62  N.  E.  215 ;  People  ».  Beattie.  89  N.  Y. 
Supp.  193,  96  App.  Div.  383 ;  In  n  Aufaqr.  88  Wadi.  806, 78  Fke.  800. 

*  State  V.  Smith,  rupra. 

•  Caven  ..  ColauB  (Te«.  Chr.  App.). ««  8.W.  774 ;  State  ».  Gardner,  88  Ohio 
St.  fi09.  61  N.E.  136. 

«  State  V.  Brigg8.  46  Ore.  366,  77  Pac.  760;  Ex  parte  Lucaa.  160  Mo.  218.  61 
8.W.  218 ;  Stfcte  ».  SharpleM.  81  Wadi.  191, 71  Pm.  707 ;  State  a.  Zeno,  78  m^.. 
80. 81  N.W.  748. 


mSTRIOnONB  ON  llfPIiOTICS  116 

■titutional.  Such  was  the  case  in  a  law  prohibiting  the  granting 
of  A  oortifieate  to  aliens,'  and  one  making  two  years'  study  as  an 
•ppnntioe  under  a  qualified  bM-ber,  or  practice  for  a  like  period 
m  a  qualified  bwber  a  prerequirite  to  the  granting  of  a  certifi- 
cate;«  but  a  law  wm  uplield  wiiieh  requind  applieants  to  p«M 
an  examination  before  receiving  a  oertifioate  unleH  tliey  had 
practiced  as  barbers  for  two  years  in  the  state  prior  to  the  mak- 
ing  of  their  application,  a  total  of  two  years  without  and  within 
the  state  being  held  not  to  satisfy  the  provision.' 

The  statute  of  Texas  on  this  subject  *  was  held  to  be  uncon- 
stitutional •  both  as  violating  the  provision  of  the  constitution 
of  the  state  that  exinnpts  mechanical  pursuits  from  an  occupa- 
tion tax,  and  as  making  discrimination  between  students  woric- 
ing  their  way  as  barbers  at  the  state  university,  barbers  at  the 
eleemosynary  institutions  of  the  state,  and  barbers  in  towns  of 
less  than  one  thousand  population  (all  of  whom  are  exempt 
from  the  application  of  the  law),  and  all  other  barbers,  who 
miBt  procure  certificates  or  forego  practice. 

The  entire  subject  of  examination  and  licensing,  as  is  true  of 
the  whole  subject  of  the  regulation  of  the  conditioa.  of  employ- 
ment, is  affected  by  the  development  of  industry  in  its  modem 
forms,  and  the  corresponding  growth  of  ideas  of  pubUc  poHcy. 
The  contractor  for  work  no  longer  does  it  himself,  and  neither 
fellow  servants  nor  the  employer  are  able  to  observe  and  guard 
against  the  negligent  acts  of  unskillful  workmen  as  may  easily 
have  been  the  case  in  days  of  small  undertakings  and  intimate 

« Templar  e.  State  Board.  131  Mich.  254, 90  N.W.  1068. 
»  State  ».  Walker,  48  Wadi.  8,  92  Pac.  775. 

•  Waas  B.  State  Board,  123  Mieh.  544, 82  N.W.  284. 
«Act«  1907,  ch.  141. 

•  Jaekna  •.  State.  85  Teua  Cr.  App.  K7, 117  S.W.  818. 


116        LAW  OP  THE  EMPLOYMENT  OP  LABOR 


relationships  between  workmen  and  employer.   The  remark  of 
the  court  in  the  Pennsylvania  case  relative  to  the  compulsory 
employment  of  a  certified  mine  foreman,  that  it  is  as  if  the  state 
were  saying,  "  You  cannot  be  trusted  to  manage  your  own  busi- 
ness; left  to  yourself,  you  will  not  properly  care  for  your  own 
employees,"  *  is  more  and  more  the  attitude  of  the  state,  and  is 
being  approved  by  legislatures  and  couitti  alike  as  the  necessary 
viewpoint  in  a  time  when  great  corpwatiims  and  deputed 
directive  agents  are  so  largely  in  evidence  in  the  conduct  of 
industry.   The  law  indicates  to  the  individual  a  standard  that 
has  been  fixed  upon  as  the  result  of  the  collective  experience  of 
the  many,  with  something  of  the  inevitable  bias  of  ex  parte 
determination  eliminated,  and  it  cannot  be  questioned  that  the 
condition  of  both  employer  and  employee  is  the  better  for  such 
provisions.  The  fact  remains  that  a  just  ground  for  interven- 
tion must  appear,  and  that  the  rights  of  liberty  and  property 
may  not  be  arbitrarily  infringed  upon  under  the  guise  of  either 
health  or  safety  regulations,  or  for  the  alleged  prevention  of 
fraud  or  oppression  where  the  parties  concerned  are  tuijunt  and 
on  a  reasonably  equal  footing. 

A  simple  and  clearly  defensible  law  is  one  that  forbids  the 
employment  on  railway  engines  of  illiterate  engineers.*  One 
state  appUes  this  rule  to  flagmen,  hostlers,  and  assistant  host- 
lers.* 

Section  55.  Age  as  Condition  of  Employment.  ^  Among 
other  conditions  that  may  be  embodied  in  statutes  determining 
the  fitness  of  employees  for  certain  duties  is  that  of  a«e,  as  of 

•  Durkin  »,  EincrtoD  Coal  Co.,  171  P».  103, 3S  Ati.  887. 

•  Minn..  R.L.,  mm.  4099;  N.Y.,  CJi.,  oh.  40,  mc.  1982;  Waah.,  Acta  1000, 
oh.  240.  aoo.  274.  •  Ohio,  Gen.  Code.  aee.  12.M1. 


RESTRICTIONS  ON  EMPLOYBBS  117 


telegraph  operators,*  elevator  operators,'  mine  foremen,*  and 
the  like.  The  resMHU  for  such  laws  are  for  the  most  part  dif- 
ferent from  those  limitmg  the  employmcit  of  yoimg  children, 
as  the  classes  of  persons  covered  are  those  wiuxQ  acts  and  di»> 
cretion  involve  the  safety  of  others  C/ii  Lr-  as  mu(;h  is  their  own 
welfare.*  The  reasonableness  of  suck  :'t»  iJjitions  is  apparent, 
coming  within  that  of  other  provisions  looking  to  the  safety  of 
workmen.*  The  employer  may  make  such  rules  of  his  own 
volition,  and  it  has  been  held  that  an  employee  who  misrepre- 
sents his  age  to  evade  the  r^ulation  is  not  entitled  to  recover 
damages  if  he  is  injured  in  the  course  of  his  employment,  being 
no  better  than  a  trespasser.*  The  bettw  reason,  however,  rests 
with  the  view  that  the  employer  is  relieved  of  liability  only  if 
the  age  is  a  cause  of  the  injury;^  but  while  the  employment 
continues,  there  is  a  relation  of  master  and  servant  subsisting, 
and  a  corresponding  liability  for  negligence  toward  such  an  em- 
ployee, the  contract  being  voidable  but  not  void.* 

A  statute  that  prohibits  the  discharge  of  any  person  between 
the  ages  of  eighteen  and  sixty  solely  on  account  of  age  •  may  be 
mentioned  in  this  connection. 

Skction  56.  Retidmt  Laborers — A{ten«.  —  Laws  that  have 

« Colo.,  A.S.,  no.  1396ft ;  N.Y.,  C.L.,  ch.  40,  mo.  1082. 

*  Mbm.,  Acta  1009,  ch.  614,  sec.  74. 

•  Mont.,  Acta  1909,  oh.  60 ;  Mo.,  Acta  1903,  p.  242. 

*  Moran  •.  Dicldnaon.  304  Maaa.  650. 90  N  JS.  1160. 

*  Moran  t.  Dickinaui,  attpra. 

•  Norfolk  A  W,  R.  Co.  a.  Bondurant,  107  Va.  815, 50  8.E.  1001. 

»  McDermott  r.  Iowa  Falls,  etc.  R.  Co.,  47  N.W.  1037  (Iowa) ;  Lupher  t. 
Atchison.  T.  &  8.  F.  R.  Co.,  81  Kans.  685, 106  Pac.  284 ;  Denver  &  R.  G.  R.  Co.  a. 
Reiter,  47  Colo.  417, 107  Pac.  1100. 

•  Lake  Shore  ft  M.  8.  R.  Co.  ».  Baldwin,  10  Ohio  Cir.  Ct.  R.  338 ;  Lupher  v. 
AteUaoo,  T.  ft.  8.  F.  R.  Co.,  supra;  Matiook  ».  Williamaville.  etc.,  R.  Co.,  108 
Mo.  405,  86  aw.  84».  t  Colo.,  A^..  aeo.  S801e8. 


118        LAW  OF  THE  EMPLOYMENT  OF  LABOR 

regard  for  the  interests  of  local  or  resident  labor  are  to  be  found 
in  a  number  of  states,  particularly  as  regards  pubUc  service. 
Belonging  to  this  class  are  laws  directing  public  printing  to  be 
done  within  the  state.'   Evidence  of  combination  or  great  dif- 
ference of  cost  gives  officers  a  right  to  accept  bids  from  outside 
the  state,  though  in  one  case  local  printers  are  allowed  a  margin 
of  fifteen  per  cent  over  outside  competitors.'   Of  like  purpose 
are  laws  directing  a  preference  of  domestic  over  loreign  prod- 
ucts as  supplies  for  pubUc  use,'  and  of  resident  laborers  as  em- 
ployees on  public  works.*  This  latter  provision  may  be  extended 
to  a  prohibition  of  the  employment  of  aUens  on  such  under- 
takings;*  or,  more  specifically,  of  Chinese  or  persons  of  Mon- 
golian descent.'   The  statute  of  Nevada  goes  so  far  as  to  declare 
the  forfeiture  of  the  charter  of  any  railroad  company  or  other 
corporation  employing  Chinese  for  the  construction  of  any 
public  works,  while  a  provision  of  the  constitution  of  California ' 
prohibited  their  employment  by  any  corporation  in  any  capacity. 

In  the  construction  by  the  courts  of  Uws  of  this  class,  it  has 
been  held  that  the  law  of  New  York  directing  a  preference  of 
resident  laborers  is  not  binding  on  contractors  on  municipal 
undertakings,"  while  the  law  of  California  prohibiting  the 
employment  of  Chinese,  enacted  in  accordance  with  the  pro- 

«  Ala^.  Code^  sec.  1657;  Colo..  Supp.,  .ec.  804b:  lU..  R.S..  ch.  127.  «c.  13; 

^  '   ?  "®  •     ^"^-^  1290 :  U.S..  R.S..  sec.  69.  1829. 

19^^1^  *****  N.  Mex..  Acta 

'C.!..  Polit.  Code.  ««.  2545.  Sims'  O.L..  No.  127;  Mass..  loc.  cit.;  N.Y.. 
foe.  at. ;  N.J.,  Acts  1899,  ch.  202. 

•  Cal..  Const.,  art.  19.  sec.  3;  Mont..  Acts  1903.  ch.  114;  U.S..  32  SUt.  389 
(imgation  works  only) ;  Nev..  C.L..  sees.  8004-5000.  » Art.  IB  sec  2 

•  People    W.n«».  13  MfaD.  618, 84  N.  Y.  Supp.  943. 


RESTRICTIONS  ON  EMPLOTEBS  119 


visions  of  the  constitution  above  noted,  were,  with  these  pro- 
visions themselves,  held  to  be  unconstitutionid  and  void,  both 
as  violating  the  provisions  of  the  treaty  with  China  and  as  con- 
flicting with  the  fundamental  law  expressed  in  the  fourteenth 

amendment  to  the  federal  Constitutiou ;  ^  so  of  a  statute  of 
Oregon  prohibiting  the  employment  of  Chinese  on  public  works 
and  in  general,  laws  discriminating  against  aliens  or  non-resi- 
dents are  not  favored  by  the  courts,  since  the  fourteenth 
amendment  is  held  to  protect  with  its  equality  clause  all  persons 
m  the  United  States,  without  regiud  to  citizenship.*  Thus  the 
law  of  Pennsylvania  restricting  employment  on  public  works 
to  citizens  was  held  not  to  be  a  d^ense  in  an  action  by  aliens  to 
recover  wages  earned  by  them,  though  their  employment  was  in 
violation  of  the  act,*  and  a  New  York  statute  directing  the  pref- 
erence of  citizens  on  municipal  undertakings  has  already  been 
mentioned  as  not  binding  on  contractors;  the  ^"xae  view 
was  taken  by  the  courts  of  Illinois  with  reference  to  a  similar 
law.'  A  law  of  New  York '  which  prohibited  the  use  of  stone 
on  public  works  of  the  state  except  that  dressed  or  worked 
within  the  state  was  held  to  be  unconstitutional  as  an  inter- 
ference with  interstate  commerce.  "The  citizens  of  the  state 
have  the  right  to  enter  the  markets  of  every  other  state  to  sell 
their  products  or  to  buy  whatever  they  need,  and  all  interference 
therewith  by  state  legislation  b  void." '  Of  a  somewhat  dif- 

>  In  re  Parrott,  1  Fed.  481,  6  Sawyer  349. 
«  Baker  r.  Portland,  6  Sawyer  566. 

•  Yick  Wo  «.  Hopkins,  118  U.S.  356, 6  Sup.  Ct.  1064. 

« PhflBdelphia  •.  MeLinden.  20S  Pa.  8. 172. 54  Atl.'719. 

•  City  of  Chicago  e.  Hulbert,  20S  lU.  346,68  N.E.  786. 

•  Acta  1807,  ch.  415,  sec.  14. 

^  People  t.  Coler.  166  N.Y.  144. 50  N.B.  776. 


120        LAW  OF  THE  iiMPLOYMBNT  .OP  LABOR 

ferent  nature,  but  falling  under  the  Imd  of  unoonstitutkmaUty 
like  the  rest,  was  a  law  of  Michigan  providing  for  the  Ucenaing 
of  barbers,  but  withholding  licenses  from  ahens,*  the  law  bemg 
declared  repugnant  to  the  provisions  of  the  fourteenth  amend- 
ment.»  Since  neither  in  pubUc  employments  nor  in  those  regu- 
lated by  the  state  can  such  discriminations  be  supported,  a 
forHon,  they  would  fail  in  eflforta  to  regulate  purely  private 
contracts. 

There  is,  however,  a  law  of  this  claas  which,  being  enacted  by 
the  Congress  of  the  United  States  on  a  subject  as  to  which  it 
admittedly  has  authority  to  act,  has  been  uniformly  sustained 
and  enforced,  i.e.,  the  law  prohibiting  the  unportation  of  aUen 
contract  labor.*    State  laws  bearing  on  the  subject  in  some 
aspects  have  been  passed  in  a  few  cases.   Thus  a  law  of  Dela- 
ware provides  for  contracts  by  state  agents  with  labox-ers  in 
foreign  countries  for  importation  for  agricultural  employment,* 
whUe  laws  of  Vugfaiia*  and  Wyoming*  decUre  that  contracte 
with  alien  laborers  shaU  be  valid  in  those  states  for  limited 
periods.  A  statute  of  Indiana  prohibits  the  importation  of 
aUens  under  contract.'    Inasmuch  as  the  whole  matter  falls 
within  the  powers  of  Congress,  all  state  legisUtion  in  conflict 
with  federal  laws  is  pro  tarUo  void. 

A  law  that  favors  local  mechanics  in  a  matter  not  involving 
the  use  of  public  funds  is  one  requiring  railroads  operating  in 
the  state  to  mabtain  repair  shops  therein  for  the  repair  and 

>  Acta  1800,  No.  212. 

»  Templu- 1.  Bowd,  181  Mieh.  3M.  00  N.W.  10S8. 

•34  8Ut.  808.   Chinese  Exdurion  Ctm,  180  UAMl,  »  Sup.  Ct.  628  •  Leea 
•.  U.8..  150  U.8.  476,  14  Sup.  Ct.  163.  •'W-  wi.  o« . 


RESTRICTIONS  ON  EMPL0TEB8  121 


rebuilding  of  its  rolling  stock.*  The  validity  of  such  laws,  in 
view  of  the  decisions  above  cited,  is  to  say  the  least  doubtful. 
Private  employment  is  touched  upon  by  other  laws  directed  to 
the  sabjeet  of  afien  labor,  as  one  requiring  employers  of  aliens 
to  deduct  the  taaces  due  fnnn  such  employees  from  thdr  wages ;  * 
and  laws  looking  to  the  protection  of  the  wages  of  aliens  as  a 
class  of  people  ignorant  of  the  language  and  customs  of  the 
country,  and  thus  easily  liable  to  imposition.*  A  law  that 
taxed  the  employers  of  alien  laborers,  allowing  them  to  deduct 
the  tax  from  the  wages  of  such  employees,*  was  declared  uncon- 
stitutional as  violative  of  the  guarantees  of  the  fourteenth 
amendment,  such  a  statute  being  a  discrimination  against  the 
empk)yment  of  aliois,  whether  the  tax  be  deducted  fam  thdr 
wages  or  paid  by  the  onpbyw  himself.* 

A  construction  of  statutes  that  affects  aliens  adversdy  is 
that  which  deprives  non-residenb  beneficiaries  in  some  juris- 
dictions of  the  benefits  of  the  so-called  Lord  Campbell's  Act,  or 
the  statute  which  grants  to  the  heirs  or  personal  representatives 
of  persons  killed  by  the  negligence  of  another  a  right  of  recovery 
against  the  responsible  person.  This  is  not  strictly  a  labor  law, 
but  is  of  general  application,  and  has  gone  far  to  ameliorate  the 
craditkm  of  the  surviving  families  of  the  victims  of  industrid 
aeddents.  Where  the  depmdente  of  a  deceased  alien  wcntoan 
are  non-residents,  the  courto  of  some  stotes  deny  to  them  the 
benefits  of  this  law  on  the  pound  that  the  l^(ldature  acts  f<»r 

>  La.,  Aeta  1808.  No.  280;  Tcn%  Aeto  1800.  di.  88. 
*Pft.,  Aotsl897,  ch.  108. 
*Coiui.,  G.8.,  MC.  4007;  Wyo.,  R.S.,  nee.  2621. 
«Pa.,  Acta  1887,  No.  139. 

•naaer  a.  MeCkwway  *  Today  Co..  82  Fed.  2&7;  Juniata  TJiwiatone  Co.  t. 
Vn^.  187  Pit.  St.  188, 40  AtL  «77. 


122        LAW  OF  THE  BMPLOTMBNT  OF  LABOR 

mtimia,  or  at  most  for  residents  of  the  state,  and  that  its  powers 
do  not  extend  beyond  its  bordera;  also  that  its  own  citizens 
employed  abroad  would  not  be  affoided  protection  in  like  cir- 
eunwtancea.>  The  more  common,  and  certainly  the  more 
humane  view,  is  that  the  negligent  employer  should  be  caUed 
upon  to  repair  to  some  extent  the  injury  caused  by  his  negU- 
gence,  and  that  the  remedial  nature  of  the  statute  was  not  in- 
tended to  be  restricted  by  the  incident  of  the  residence  of  the 
beneficiary.' 

Sbction  67.  Cowiet  Labor.  — An  attempt  to  modify  com- 
petition with  local  labor,  and  specificaUy  with  free  labor,  is  made 
in  many  states'  by  laws  limiting  the  labor  of  convicts  to  the 
manufacture  of  supplies  for  the  use  of  the  state  or  to  labor  on 
public  works  and  ways,  or  by  requirements  limiting  the  number 
of  convicts  that  shall  be  employed  in  the  manufacture  of  desig- 
nated articles  or  classes  of  articles,  or  prohibiting  the  manufac- 
ture of  certain  kinds  of  goods  altogether,  by  forbidding  the  use 
of  any  machinery  in  numufacture  except  such  as  is  operated  by 
hand  or  foot  power,  and  by  requiring  that  convict-made  goods 
rfiall  be  so  marked,  or  that  dealers  in  them  shall  be  speciaUy 
licensed.   Such  laws  are  not,  strictly  speaking,  labor  laws,  as 
they  affect  neither  employer  nor  employee  in  their  relations  to 
each  other,  but  are  of  an  economic  intent,  seeking  to  modify 
the  effects  of  the  competition  of  convict  with  free  labor.   In  so 

«Demt.P.R.Co.,  181  Pa.  526, 37  AU.  668;  McMilUn  ..  Spider  I*k.  8.  *  L. 
Co.,  1 15  Wia.  332. 91  N.W.  979. 

•  MulhiJl  V.  PaUon,  176  Mass.  266.  67  N.E.  386;  Alfson  «.  Bush.  182  N  Y 
898, 76  N.E.  230 ;  Kellyville  Coal  Co.  t.  Petraytia,  195  111.  215, 63  N.E.  94  •  Low 
Moor  Iron  Co.  t.  Bianca'.  Adm'r..  106  Vil  88,  56  8.E.  882;  Rmhad  Mining 
Co.,  89  Minn.  41,  93  N.W.  1057. 

•m..  R.S.,  eh.  108;  Minn.,  R.L.,  sees.  5446-6449 ;  N.Y..  Con.  L.,  ch.  31,  art 
18  ,  Ohk>.AA,KK».  7388-86,  4400-1  to  4400-10;  Mi«.,  R.S..  eh.  236.  ele. 


RESTRICTIONS  ON  EMPLOYEES 


123 


far  as  they  relate  only  to  the  employment  and  management  of 
convicts  as  laborers,  the  public  has  no  grounds,  as  a  rule,  for 
intervening;  but  where  the  rights  of  citizens  are  affected,  as 
by  restrictions  on  the  sale  of  goods  purchased  from  prison  manu- 
factories, or  made  in  prisons  under  contract,  a  question  as  to 
restrietionB  on  oommetce  arises.  Hda  is  particularly  the  case 
where  the  goods  are  transpwted  outside  the  state  of  manufac- 
ture, and  thus  acquire  a  status  as  articles  d  interstate  commerce, 
which  u  strictly  and  exclusively  under  the  control  of  the  federal 
government.  It  was  on  this  basis  that  laws  of  New  York »  and 
Ohio,*  discriminating  against  goods  of  prison  manufacture, 
were  declared  unconstitutional.* 

« Acts  18M.  ch.  698 ;  Acta  1806,  ch  831.  i  Acta  1894,  p.  346. 

•  Pwpla  t.  HawUiia,  88  Hun.  48. 82  N.  Y.  Supp.  624 ;  aame  caae.  167  N.  Y.  1, 61 
N.E.267;  Anmld f.  Yaackn, M Oto St 417, 47 N Ji. 60. 


CHAPTER  Vn 


THB  LIABIMTT  09  EMPLOYERS  FOR  INJUBISB  TO  THXIB 

XMPLOTSXS 

Skction  58.  What  Law  Con<rob.~  Although  the  English 
common  \a,w  lies  at  the  foundation  of  our  doctrine  of  empiayen* 
liability,  this  doctrine  is  continually  imdwgoing  change,  both 
by  the  rulings  of  state  and  federal  courts  and  by  the  enactment 
of  numerous  statutes  passed  with  a  view  to  a  more  exact  defi- 
nition of  the  rights  of  the  employee  or  to  some  amelioration  of 
Mb  oonditira  in  other  respects.  The  principles  of  the  common 
law  are  so  differently  mterpreted  in  the  various  jurisdicticms 
that  sta^o  names  are  given  to  certain  applications  ci  them,  in- 
dicative o{  a  locally  recognised  view  which  is  not  in  accord  with 
the  generally  accepted  construction  of  the  law,  while  the  statutes 
range  in  form  and  effect  from  a  mere  restatement  of  the  common 
law  to  an  abrogation  of  it  in  some  more  or  less  inclusive  degree, 
and  the  enactment  of  rules  varying  considerably  both  from  it 
and  from  the  statutes  of  other  states. 

SKcnoN  59.  Duty  of  the  Employer  to  Exereiae  Care.  —  The 
two  principal  factors  of  the  problem  of  liabiUty  are  the  duty  of 
the  ^plojrer  to  {wotect  his  oni^oyee  m  the  discharge  fd  the 
duties  of  his  employment,  and  the  assimiption  by  the  employee 
of  the  risks  involved  in  the  undertaking  in  which  his  contract 
of  employment  engages  him.  The  duty  of  the  employer  is  first 

m 


UABIUTT  OF  llfPLOTlBS  fOR  INJUBII8  125 

eaoddend,  but  it  will  be  found  impossible  to  discuss  it  without 
oonstuitly  bearing  in  mind  the  modifications  that  result  from 
the  odstenee  of  the  complonentaiy  obligations  that  rest  upon 
the  onployee. 

The  briefest  statement  of  the  rule  governing  the  waphym  is 
that  he  is  required  to  use  due  care  for  the  safety  of  his  employees 
while  they  are  engaged  in  the  performance  of  their  work.  This 
is  taken  to  include  all  reasonable  means  and  precautions,  the 
facts  m  each  particular  case  being  taken  into  consideration.  If 
sueh  iwovislons  have  beoi  made  as  a  reasonably  prudent  man 
would  supply  if  he  himself  were  exposed  to  the  dangers  of  the 
servant's  positicm,  no  n^^igenoe  would  appear.  In  the  case  of 
corporations  the  Supreme  Court  fixes  the  duty  at  the  use  (rf  such 
caution  and  foresight  as  a  corporaticm  ooatroUed  by  careful, 
prudent  officers  ought  to  exercise.* 

Though  the  courts  of  review  have  condemned  any  instruc- 
tions that  would  tend  to  charge  the  employer  with  a  higher 
degree  of  care  than  that  which  may  be  defined  as  ordinary,  the 
measure  Is  not  an  absolute  one,  but  is  proportioned  to  the 
dangers  to  idiich  the  employee  is  exposed.  The  ordinary  in- 
cidents oi  railroading,  mining,  and  certain  classes  of  manufac- 
turing are  in  themselves,  in  comparison  with  general  employ- 
ments, unusually  dangerous;  and  so  (rf  a  large  raih'oad  yard 
as  compared  with  a  smaller  one,  an  express  train  as  compared 
with  a  freight  train,  or  a  gaseous  mine  with  one  in  which  no  such 
dangers  exist.  In  such  cases  as  these,  or  when  temporarily 
abnonnal  conditions  prevail,  ordinary  care  is  advanced  far 
bqrond  tiie  requironents  of  tiie  less  dangerous  conditions.  As 
rtated  by  ihe  Bvqpnam  Court  in  a  consideration  of  this  question, 

>  Wafaadi  B.  Co.  t.  MeDuieta,  107  U.S.  454, 3  Sup.  Ct.  982. 


126        LAW  OF  THB  EMPLOTMBNT  OF  LABOR 


ooeup«ti(x»,  no  tuAtae  how  important,  if  nrnrwitrilj  dufnout, 
■Itould  be  prosecuted  only  after  the  adoptim  of  all  MaeooaUe 

precautions  known  to  science.  The  neoeesary  attend  at  danger 
should  operate  as  a  prohibition  to  the  prosecution  of  such  under- 
takings without  such  safeguards,  and  the  neglect  to  provide  all 
known  and  readily  obtainable  appliances  will  be  regarded  as  a 
proof  of  culpable  negligence.'  On  the  other  hand,  care  may 
lawfully  be  relaxed  if  the  riik  is  unusually  slight  or  if  a  device 
is  for  a  qMdfio  and  transitoy  use.  The  general  rule  to  care 
fe  qualified  by  the  youthf uhiess  w  inexpnience  of  an  aa^ayee, 
a  greater  degree  of  care  bdng  commonly  required  for  the  pro- 
tection of  such  persons ;  nor  is  the  master  relieved  by  the  fact 
that  a  servant  of  tender  years  misrepresented  his  age  in  order  to 
secure  the  employment.* 

Skction  60.  Place  and  Irutrumenialitiea.  —  In  accordance 
with  the  rule  as  to  du«  «  the  obligation  rests  on  the  master 
to  sui^ly  tools  and  i4>plianceB  that  are  reascmably  safe  for  the 
intended  use  and  reasonably  well  adi^ited  to  perform  ihe  wwk 
m  contemplation.  These  must  be  provided  at  the  place  of  use, 
or  nt  a  place  of  such  ease  of  .access  as  to  be  reasonably  procur- 
able. 

Clc^aly  related  is  the  duty  to  provide  a  safe  place  to  work  and 
proper  material  for  use,  the  measure  still  being  not  absolute,  but 
reasonable  or  adequate  safety.  The  distinction  between  place 
and  i^pliance  is  not  an  eaqr  one  to  draw,  though  the  courts  are 
striotor  in  their  requiremoits  as  to  the  former  than  to  the  latter. 
Thus,  if  a  scaffold  furnished  by  an  employo-  be  regarded  as  a 
place  to  wwk,  he  is  responsible  not  only  for  the  mateiiab  msp- 

>  Mather  •.  RiUrtom.  IM  n.8. 891.  IS  Sup.  Ct  4«4. 

t  Am.  Car  A  Fouadiy  Co.  t.  Anantnmt.  214  ID.  009, 7S  NX  768. 


LIABILITY  OF  IMPLOTBIIS  FOR  INJURIES  127 

pUed,  but  also  for  the  construction  and  maintenance;  while  if 
it  be  viewed  only  as  an  appUance,  he  must  make  reasonable 
proviiioii  therafor;  but  ite  insufficiency,  *  such  there  be,  may  oe 
Wd  to  the  Moouiit  of  the  fellow  worlanen  of  an  injured  em- 
ployee, or  perhaps  to  hie  own  negUgenoe  in  erection.* 

The  doctrine  that  the  employer  is  bound  to  eafeguard  hia 
employees  from  exposure  to  needless  and  unreasonable  rids  is 
subject  to  the  general  quahfic&tion  that  one  has  the  right  to 
carry  on  a  business  which  is  dangerous,  either  in  itself  or  be- 
cause of  the  manner  in  which  it  is  conducted,  provided  it  does 
not  hiterfere  with  the  rights  of  others,  without  incurring  liability 
to  a  servant  who  is  c^lo  of  contracting  and  who  knows  the 
dangers  attendant  on  employment  m  the  circumstances.*  A 
brief  stotement  of  the  rule  is  that  the  employer  has  a  right  to 
exercise  a  reasonable  judgment  and  discretion  in  the  conduct 
of  his  affairs,  and  it  is  said  that  it  would  be  a  very  extraordinary 
case  mdeed  in  which  this  right  would  be  interfered  with.*  This 
does  not,  however,  permit  the  use  of  unreasonably  dangerous 
appliances  nor  those  which  are  in  themselves  defective  or  so 
obsolete  and  inferior  that  their  adoption  or  retention  would  of 
Itself  mdicate  ne^igenoe/  though  the  question  is  held  to  be  one 
not  of  comprrative  safety,  but  of  reasonable  safety.  Nofirod 
rule  of  liability  is  possible,  therefore,  in  this  respect,  each  case 
being  of  necessity  decided  on  its  own  merits. 

Section  61.  Standards  of  Care  Fixed  by  Statute.  -  Where  a 
standard  is  fixed  by  statute,  as  for  the  safeguarding  of  the  operar 

Blower  Worio,  134  WIb.  342. 114  N.W.  796.  """ww 
•  TutUe    Detroit,  etc..  Hy.,  132  VJB.  m,  7  £tap.  Ct  1180. 
•Tuttle  ».  Detroit,  etc..  By.,  mpra. 

•ClKMtaw.  O.  A Q.  B.  Co. ».  MeDMfe.  181  U.S.  64.  24  Sup.  Ct  24 


128       L4W  or  TBI  IMPLOTIIINT  OW  LABOR 


tioot  at  mining  the  proviiloo  and  mahrtwianoe  ct  fin  cwm^ms, 
of  guwdi  for  daofarous  machinnry,  or  <rf  lafety  ooop)en  And 
other  devioM  and  appfianoet  on  raihrty  trains,  railroads,  etc., 
the  violatton  of  such  statutes  resulting  in  the  injury  of  any 
person  entitled  to  be  protected  thereby  is  construed  by  the 
better  authority  to  be  an  act  of  negligence,  though  it  is  some- 
times held  to  be  only  evidence  of  negligence.^  That  the  failure 
to  comply  with  the  statute  is  negligence  would  seem  hardly  to 
be  diqmtaUe,  since,  aa  wm  mwI  hi  the  BCo^iRyve  oaae  eited 
above,  "every  penon,  while  violating  an  esppe*  ■katete,  is  a 
immfctoer,  is  ex  neeeamlate  n^lgent  in  the  ^yes  of  the  law" ; 
or,  as  an  English  judge  {rfuased  the  same  rule,  "wfarn  an  abso- 
lute duty  is  imposed  on  a  person  by  statute,  it  is  not  necetsary, 
in  order  to  make  him  liable  for  breach  of  that  duty,  to  show 
negligence." 

In  a  number  of  cases,  the  laws  making  such  requirements 
provide  in  Umaa  that  a  failure  to  comply  therewith  makes  an 
employer  liable  in  damages  for  aU  injuries  caused  by  mioh  fail- 
ure, iHdch  is  but  a  declaratimi  d  the  rule  laid  down  in  the  quo- 
tations given  above.  In  other  eases  the  statute  only  {wovides  a 
penalty  for  its  violation,  and  does  not  in  terms  give  an  injured 
employee  a  right  of  action,  though  the  injury  may  be  traceable 
to  the  omission  of  the  device  prescribed  by  the  law.  The  weight 
of  authority  gives  a  right  of  action  in  such  cases.'  According 
to  the  rule  of  conmion  law  that  the  employee  does  not  assume 

I  Compare  Mosgrove  ».  ZimUemsn  Coal  Co.,  110  Iowa  169,  81  N.W.  227; 
Krauoe  «.  Morgan,  53  Ohio  St.  28,40  N.E.  886;  St.  Louia,  I.  M.  St  8.  R.  Co.  r. 
Taylor,  210  U.S.  281,  28  Sup.  Ct.  816,  with  Pitcher  ».  New  York,  etc.,  R.  Co., 
137  N. Y.  678.  28  N.E.  136 ;  Jupiter  Coal  Min.  Co.  t.  MaNor.  84  HL  App.  86. 

'Hawodt.  Latham,  77Kana.466.96Pae.  11;  nwman  «.  Pi^ar  Mffl  Ca,  81 
Bob  135.15N.T.8iqp».e57;  Klstt  t.  Luriw  Co,  97       641. 78  N.W.  663. 


LUBIUTT  OF  nfPLOTIllS  fOR  INJUBI18  129 


the  rtak  of  hit  trnfltayw'*  negUfenoe,*  it  would  foUow  thai  in  » 
nit  for  daouiiM  when  ft  stfttute  had  been  violated,  the  em- 
fkjvt  would  be  debarred  from  pleading  thai  the  emi>loyee  had 
aamimed  the  risk  of  the  injury,  and  it  has  been  so  held,*  though 
not  uniformly.*  Here  again  statutes  have  been  enacted  in 
support  of  what  appears  to  be  the  better  rule,  and  the  employer 
violating  the  statute  cannot  plead  assumption  of  the  risk  by  the 
injured  employee.*  It  has  even  been  held  that  the  negligent 
employer  ooukl  not  <rffer  to  iMrove  that  the  employee  was  guilty 
of  oootributory  negligence,'  and  this  doctrine  too  has  been 
enacted  bto  law  hi  a  few  uastanoes.' 

Compliance  with  statutory  regulation  will  not  oporate  as  a 
defense  where  the  conditions  are  dtill  so  dangerous  as  t<-  '^ipport 
a  charge  of  negligence  against  the  employer.'  On  ,me 
basis,  it  has  been  held,  where  the  statute  prescribes  the  condi- 
tion m  which  a  working  place  is  to  be  maintained,  that  it  is  not 
snffietent  that  the  employer  has  put  the  matter  into  the  hands 
d  a  subordinate  to  attend  to,  but  he  must  porform  or  have 
performed  the  specific  thhug  requued  by  the  stotute  if  the 
charge  d  negligenoe  is  to  be  avdded.* 

>  See  MO.  72. 

*  Davia  t.  Meroer  Lumber  Co..  184  Ind.  413, 73  N.E.  890 ;  Luidcnf  Kuh. 
188  m.  484,  80  N.E.  501 ;  Jones  t .  Canunel  Co.,  325  Pk.  044, 74  Ati.  613. 

*  Bodell  V.  Brssil  Block-Coal  Co.,  25  Ind.  App.  664,  58  N.E.  856 ;  Sutton  t. 
Bakery  Co.,  135  Iowa  390,  112  N.W.  836;  Knialey  f.  Pratt,  148  N.Y.  377.  42 
N.E.  986. 

*  Iowa.  Acta  1907.  ch.  181 ;  Ohio,  Gen.  Code.  sec.  6243 ;  N.Y.,  Acts  1910,  ch. 
352 ;  alio  rrovliionj  reetricted  in  application  to  the  statutes  containing  them,  in 
many  other  »u  ». 

*  KeUyville  Coal  Co. ».  Strine.  217  111.  616.  75  N.E.  376. 

•m..  Aete  1005.  p.  850,  aee.  9;  MIm..  Code.  aec.  4061 ;  Mo.,  Acts  1907,  pp. 
181,  182. 

*  Chesapeake  -i  O.R.  Co.  ».  Rowsey'e  Adm'r..  108  Va.  632.  62  S.E.  363. 
•Sommeri.  Carboa  Hfll  Coal  Co..  80  Fed.  54. 


130        LAW  OF  THE  EMPLOYMENT  OP  LABOR 


Section  62.  Repair  and  Maintenance.  —  The  same  care  is 
required  of  the  master  in  maintaining  as  in  furnishing  safe  and 
suitable  appliances.'  Inasmuch,  however,  as  the  progress  of 
work  and  the  use  of  tools  produce  constantly  changing  condi- 
tions, the  doctrine  that  reasonably  safe  places  and  appliances 
must  be  provided  is  frequently  modified  by  the  statement  that 
the  duty  has  been  discharged  wh«i  <ndinary  or  reasonable  care 
has  beoi  exercised  in  the  ^ort  to  make  such  provisiim.*  The 
continued  employment  of  tools  that  are  so  worn  as  to  increase 
the  danger  of  their  use  will  in  general  entail  liability  on  the 
employer.  If,  however,  the  danger  is  an  obvious  one,  the  em- 
ployee, continuing  to  work  with  a  knowledge  of  the  danger  and 
without  complaint,  will  be  considered  to  have  assumed  the  risk, 
and  in  case  of  injury  has  no  recovery ;  nor  will  liability  attach 
unti!  the  employer  has  or  reasonably  could  have  information  of 
the  defect  requiring  repair. 

An  imp(»tant  decidon  by  the  Supreme  CJourt  puts  at  rest  a 
question  on  which  opinions  diff««d,  t.«.,  as  to  the  standard  of 
care  to  be  exercised  in  cases  where  a  statutory  duty  was  pre- 
scribed. It  had  been  held  that  the  common  law  rule  was  not 
superseded  by  the  federal  statute  providing  for  the  equipment 
and  maintenance  of  safety  couplers  on  railroad  cars,  the  court 
ruling  that  the  use  of  reasonable  and  ordinary  care  and  diligence 
relieved  the  employer,*  while  in  anothw  case  in  ?ddch  Uie  wme 
law  was  under  connderation,  it  was  ruled  that  the  duty  of  keep- 
ing the  ^>pliaaoea  in  (wdor  was  an  absolute  om,*  a  view  that  was 

>  Moon  t.  WatMudi.  St.  L.  A  P.  R.  Co.,  8S  Mo.  US. 

'Anderson  v.  Michigan  C.  R.  Co.,  107  Mkh.  591,  6S  N.W.  SU;  BMd  t. 
Stockmyer,  20  C.  C.  A.  381,  74  Fed.  186. 

•  MiHouri  P.  R.  Co.  t.  BrialoMiar.  77  Kmm.  14.  M  Pm.  SSI. 

« Ddk  I.  B.  Co.  8m  St  lotdt,  ete.,  B.  Co.  w.  Mk.  188  VmL  Ml.  M4  (C.  C.  A.). 


LIABILITY  OF  EMPLOTEBS  FOR  INJUBIB8  131 

lejeeted  by  the  appellate  court.  A  amilar  ease  leaohed  the 
Supreme  Court,  where  it  was  held  that  the  duty  was  an  absolute 
Oi»o,  and  that  deviation  from  the  standard  was  negligence,  the 
rule  of  "reasonable  care"  having  been  abrogated  by  the  statu- 
tory requirement  as  to  adjustment  and  repair.* 

Section  63.  Customary  Method  or  Use.  —  The  employer  is 
not  liable  to  an  employee  for  an  injury  incurred  by  a  departure 
from  the  customary  method  of  performing  work  or  by  leaving 
the  place  of  his  employment  to  work  in  some  other  department 
unless  on  instructdtms  from  a  properly  authorised  representa- 
tive." So  if  a  more  dangerous  method  or  place  of  work  is  chosen 
when  one  less  dangerous  was  available,  the  resultant  injury,  if 
any,  does  not  charge  the  employer  with  liability.'  The  same 
rule  applies  where  an  instrumentality  is  put  to  a  different  use 
by  the  employee  from  that  for  which  it  was  intended,  with  a 
resultant  injury  to  himself.* 

SwmoN  64.  ItupeeHon.  — The  duty  of  making  repairs  nec- 
essarily involves  the  duty  of  discovering  the  need  for  them  as  it 
may  arise,  which  entails  the  duty  of  mq>ection.  The  mqiection 
required  for  maintenance  differs  somewhat  from  that  necessary 
or  presumed  at  the  time  a  new  plant  or  new  tools  are  first  brou^t 
into  use.  As  to  the  latter,  it  may  first  be  stated  that  an  em- 
ployer who  makes  and  supplies  an  instrumentality  is  chargeable 
with  such  a  knowledge  of  its  defects  as  ordinary  care  during  the 
course  <rf  such  manufacture  would  have  disclosed.  In  case  of 
purchase,  the  duty  of  inspection  may  ordinarily  be  assumed  to 
have  been  discharged  by  the  manufacturer,  though  a  showing 

« St.  Louii,  I.  M.  A  8.  R.  Co.  ir.  Taylor.  210  U.S.  281,  28  Sup.  Ct.  616. 
»  Staci  t.  Edwud  WMtern  Ten  4  S|>ice  Co..  169  Mo.  489. 60  8. W.  891. 
*  WoomBc  ICiriMC.  R.  Co..  79  Ms.  897. 10  AO.  49. 
«  Meby  t.  HMd.  168  IfMb  370^  47  N.B.  lOi. 


132        LAW  OF  THE  EMPLOYMENT  OF  LABOA 


that  the  purchase  was  earefcarfy  made  (as,  for  insUnoe,  without 

indicating  to  the  manufacturer  the  intended  use,  so  that  he 
might  make  tests  appropriate  to  such  use)  has  been  held  to 
imply  negligence.  If  an  article  is  of  an  approved  pattern,  and 
the  dealer  is  a  reputable  one,  the  presumption  is  in  favor  of  the 
employer's  non-liability.*  The  doctrine  doee  not  control  every- 
wi^esn,  howevw,  eaaes  bdng  found  in  wfaieh  it  was  hdd  to  be  the 
duty  ot  the  an|do3rer  to  cause  a  thmtnii^  inqieetioa  of  memly 
purchased  articles  More  putting  them  into  use.'  In  favor  of 
this  view  is  the  fact  that  it  accords  with  the  doctrine  of  non- 
delegable duties,  discussed  below,  and  that  it  alone  affords  pro- 
tection to  the  employee  where  there  has  been  actual  negligence 
on  the  part  of  the  manufacturer,  with  whom  he  has  no  contrac- 
tual relations. 

The  necessity  for  inqteetimi  oi  instnimmtalities  in  use  ob- 
viously varies  with  the  nature  of  the  appliance  and  the  dr- 
eumstances  ci  trnfioynnmt  BauM  and  simple  tods  may  be 
used  without  inspection,  the  employer  bdng  entitled  to  assume 
that  the  workmen  will  make  timely  discovery  of  defects  and  be 
suitable  judges  of  the  fitness  of  such  tools  for  use.  Complex 
or  dangerous  machinery  or  instrumentalities  that  are  liable  to 
rapid  wear  or  deterioration  must,  on  the  other  hand,  be  the 
subjects  of  inspections  of  a  nature  and  frequency  adapted  to 
the  conditiras  indicated. 

The  duty  does  not  extend  b^rond  a  reasonably  careful  inq>ec- 
tion,  thouf^  no  defect  will  be  connd^ed  latent  wiutk  may  be  dis- 
covered by  the  nardse  oi  due  care.  The  taking  apart  oi  ma- 

>  Reynolds  «.  Merchanta'  Woolen  Co.,  168  Mom.  501,  47  N.B.  400.  But  Me 
Erieluon  ».  Am.  Sted  A  W.  Co.,  193  MaM.  119,  78  N.E.  761. 

*  Morton  t.  Detroit,  etc.,  R.  Co.,  81  Mieh.  428. 48  N.W.  Ill ;  Rtflhimmil  A 
D.  B.CO.  •.  SUii^  149  UJ9. 888, 18  Sup.  01. 887. 


UABILITT  Of  mPLOTKBS  VOB  INJUBI18  138 


chinery,  or  such  other  mspection  as  would  interfere  with  the 
pn^table  ocmduet  ci  buanes^  is  not,  in  general,  required.* 
External  tppeanaoM,  however,  may  be  sueh  as  to  demand  a 
more  thorouf^  inqMction;*  so,  also,  (rf  ai^Iianoes  diowing 

defects  in  operation  or  those  to  which  some  accident  has  oc- 
curred of  a  nature  likely  to  cause  obscure  injuries  to  machinoy, 
which  may  subsequently  give  rise  to  accidents.' 

In  many  states  coal  mines,  factories,  stationary  steam  boilers, 
and  in  some,  locomotive  boilers  and  railroad  equipment,  are 
subjects  of  inq>ecti(m  at  the  hands  of  officials  appointed  by  the 
state.*  AItii(Mi|^  some  of  these  requirements  have  regard  to  the 
safety  ol  the  public  as  well  as  to  that  of  the  employees,  they  are 
valuable  as  fixing  standards  which  must  be  observed,  and  non- 
compliance with  an  inspector's  orders  is  negligence  if  an  emplqjree 
is  injured  by  reason  thereof.*  According  to  the  better  view, 
assumption  of  risks  cannot  be  pleaded  as  a  defense,  since  the 
employee  has  a  right  to  presume  that  his  employer  has  per- 
formed his  prescribed  duty.*  Failure  to  comply  with  an  m- 
spwUa'B  orders  is  a  penal  offense  in  Idaho.' 

The  f aet  that  gov»nmeiit  inqMetions  have  bem  made  does 
not,  howevnr,  accuse  the  employer  for  neg^genoe  in  this  r^ard ;  * 
nor  does  the  fa''L  that  the  employmmt  of  a  certified  ovmeer  or 
mine  boss  is  required  by  statute  mrve  to  clrar  the  emi^oyer  of 

>  Phfladdphi*  *  R.  R.  Ck>.  t.  Hofjics,  118  Pft.  801, 18  Atl.  280. 

•  Hall ».  Emeraon-Stevens  Mfg.  Co.,  94  Me.  445,  47  Atl.  924. 

•  Mooney  ».  Connecticut  River  Lumber  Co.,  154  Maas.  407, 28  N.E.  352. 
« See  Chapter  4. 

•  Andrieua'  Adm'r.  t.  Coal  Co.,  28  Ky.  704, 90  8.W.  233. 

•  Folv  f.  Pioneer  Mining,  etc.,  Co.,  144  Ala.  178, 40  So.  273. 
'  Code,  eec.  4761. 

•  O'Connor  *.  Armour  Packins  Co.,  158  Fed.  841  (C.CjL).  8m  N.Y.,  CX., 
^40,ne.7S. 


*4 


i:  ,1 


I 

4  ^ 


134        LAW  OP  THE  EMPLOTMBNT  OP  LABOR 

responmbility  for  his  negligent  conduct.'  The  ravene  hu 
been  held,  however,*  though  it  cannot  be  regarded  as  other  than 
an  erroneous  view  of  the  law,  and  it  may  be  precluded  by  a 
declaration  embodied  in  the  statute  to  the  effect  that  the  certi- 
fied employee  is  to  be  regarded  as  the  personal  representative 
ot  the  onirfoyw  * 

SacnoN65.  OvmerMpofApplumeu.  — The  doty  faioBpeo- 
ti<m  above  conadered  aanimes  the  ownership  of  both  apfdiaaces 
and  premises  to  be  in  the  employer.   Whaeowii«rdup  is  divided 

various  distinctions  exist,  based  on  the  relations  of  the  employer 
and  the  owner  of  the  premises  or  instrumentality.  The  most 
important  of  this  class  of  cases  are  perhaps  those  in  which  is 
involved  the  handling  by  railroad  companies  of  cars  belonging 
to  other  companies.  Such  cars,  known  in  railroading  as  "for- 
e^"  can,  ahhottj^  reodved  only  temporarily  for  purposes  of 
tranqportatimi,  are  as  comidetely  idmtified  with  the  employer's 
plant  as  if  the  transfer  was  made  by  purchase,  so  that  the  nature 
of  the  obligations  arising  therefrom  differs  from  that  «dstii«  m 
cases  where  the  employer's  lack  of  control  over  the  i^liance  is 
usually  held  to  exempt  him  from  liability.* 

In  the  first  place,  it  may  be  said  that  no  railway  company  is 
obliged  to  receive  and  turn  over  to  be  handled  by  its  employees 
any  defective  or  dangerous  car.*  Every  company  is  under  a 
1^  duty  not  to  expose  its  employees  to  dangers  arising  from 

>C(HHoI.C(MlCo.t.8ea^,17BIU.S70.83N.E.733;  Fulton  ».  Wilmington 
Star  Min.  Co.,  1S8  Fed.  IBS  (CCA.) ;  Antfawh  Coal  Co.  t.  Soekay,  189  lad.  247. 

82  N.E.  76. 

» Durkin  V.  Kin^>u>n  Coal  Co..  171  Ph.  IM.  S8  Att.  287 ;  ^nUiuw  t.  Thaeker 
Coal  A  Coke  Co.,  44  W.  Va.  699.  SO  8.E.  107. 
»  Tenn.,  AcU  1907.  ch.  640. 

« BalUmore  A  P.  R.  Co.  e.  Maekey.  157  U.S.  13, 18  Suit.  Ct  401. 
•  Oottlflib  f.  E.  Co.,  100  N.Y.  482. 8  N.B.  844. 


LIABILITY  OF  SMPLCTERS  FOR  INJURIES  135 


sueh  drfeeta  of  fwrign  ean  as  may  be  disoovered  by  reasonable 

inspection  before  such  ears  are  received  into  its  train.  This 
inspection  is  such  a  one  as  the  company's  own  cars  would  receive 
while  in  use,  and  not  a  shop  inspection.  The  shortness  of  the 
time  during  which  the  foreign  car  is  in  the  hands  of  a  company 
is  not  an  excuse  for  neglecting  the  duty.* 

Where  danger  from  the  use  of  foreign  cars  arises,  not  from 
ddective  equifmients,  but  from  differences  Ot  ccmstruction,  it 
has  been  generally  held  that  the  servant  assumes  the  obvious 
risks  thus  ariring,  but  if  he  is  ignorant  oi  the  risk,  a  right  of 
action  accrues.  It  may  be  noted,  however,  that  the  statutory 
requirement  as  to  automatic  couplers  is  not  met  unless  the 
various  kinds  brought  together  will  actually  couple  by  impact, 
the  mere  fact  that  they  will  so  couple  when  used  with  others  of 
the  same  make  not  being  a  sufficient  compliance  with  the  federal 
statute.* 

Sktion  66.  Working  Font.  — *  Besides  the  duty  to  use  care 
in  regard  to  instrumentalities,  the  employer  must  also  be  rea- 
sonably and  properly  careful  and  diligent  to  see  that  each  em- 
ployee hired  by  him  has  such  qualifications  as  will  enable  him 
to  perform  his  duties  without  greater  risk  to  himself  and  his 
co-emp.^jyees  than  the  nature  of  the  business  involves;  and 
that  a  sufficient  number  is  provided  for  a  reasonably  safe  per- 
formance of  the  work. 

The  disqualifications  of  penom  of  suitable  age  may  be  mental, 
m<Mral,  w  phyneal,  the  most  cmnmon  being  those  tiiat  arise 
from  tiw  intemperate  use  oi  intoxicants,  though  habitual  care> 
lessness  at  recklessness,  such  as  may  reasonably  eomt  to  the 

>  Atdiinn.  T.  *  B.  F.  B.  Co.    Poifold,  67  Kum.  148, 46  Pm.  674. 

>  Jbha«Bf.8«rtbMBP.  R.  Co..  196  UJ9. 1.  »(8ai>.  Ci.  16S. 


136       LAW  OF  THB  BMPLOTMSNT  OP  LABOR 


knowledge  of  the  employer,  likewise  charges  him  with  nubility. 
The  element  of  knowledge,  either  actual  or  constructive,  ia  an 
essential  one.  A  plaintiff  groimding  his  claim  on  the  negligence 
of  the  employer  in  hiring  an  incompetent  coservant  must  prove, 
not  only  the  incompetence,  but  also  that  the  employer  failed  of 
proper  care  and  diligence  in  the  original  hiring  or  in  subsequent 
inquiry  ae  to  inoooqieteiiQy  of  wkitii  notice  was  given  during 
the  term  of  nrviee.* 

Section  67.  AuIm. — Another  branch  of  the  empkqror's  duty 
is  that  of  providing  appropriate  rules  and  securing  the  carrying 
out  of  a  suitable  system  for  the  conduct  of  his  work.  This 
applies  only  to  business  sufficiently  complex  to  make  such  ar- 
rangements reasonable,  and  no  such  assumption  is  made  as  that 
rules  can  be  so  framed  as  to  guard  against  every  contingency. 
Such  rules  and  {naetioee  as  are  prescribed  must  be  brou^t  to 
the  knowledge  of  the  employee  b^ore  he  is  considered  to  be 
bound  hy  tiiem,  but  it  may  be  hif wred  b<m  oireumstsnoes  that 
this  has  been  done.  Express  contracts  with  reference  to  the 
conditions  of  employment  as  affected  by  q)ecifod  rules  are 
conclusive  as  against  an  employee  professing  ignorance  of  such 
rules ;  *  but  a  mere  agreement,  though  in  writing,  to  study  the 
rules  and  keep  posted  on  them  is  applicable  only  to  such  rules 
as  have  been  duly  promulgated  or  which  the  employer  has 
definitely  undertaken  to  bring  to  the  employee's  knowtedge.* 

Enf<Mrcemait  of  rules  is  no  kss  a  duty  than  the  prcnnulgation 
of  rules  in  so  far  as  a  reasonalrfy  cartful  supervisi<m  will  accom- 
plish it  Repeated  and  notorious  vidatkms  will  diaqp  the 


<  IndiuA.  B.  ft  W.  R.  Co.  •.  Dailey,  110  Ind.  76, 10  N.E.  631. 

*  Sedgwick  •.  lUinou  C.  R.  Co..  73  Iowa  ISS,  U  N.W.  700. 

*  CuioU  •.  SMt  TteBWMt,  V.  *  O.  R.  Co..  88  Cta.  4SS.  10  8JB.  MS. 


LIABILITT  OF  EMPL0TER8  FOB  INJURIES  137 


emiriogm  with  s  knoniedfe  of  the  IniwiiBciengy  of  the  inovirioni 
made  and  the  necessity  of  new  regulations  or  of  additional  su- 
perintendence. In  the  absence  of  steps  to  secure  the  enforcement 
of  rules  thus  violated,  it  has  been  frequently  held  that  the  master 
has  sanctioned  their  abrogation  and  that  they  are  no  longer 
binding.  Their  violation  would  not  then  be  regarded  as  neg- 
ligence, nor  could  the  employer  ofF«r  such  rules  as  a  ddenw.* 
In  a  few  jurisdictions  the  adoption  and  pRBUulgatioii  of  ruks 
railroad  employees  are  the  subject  of  statiiUMy  requiramait ; ' 
idiile  in  some,  at  least  partial  codes  of  mine  rules  have  been 
enacted.* 

Section  68.  Instructions  and  Warnings.  —  Besides  the  gen- 
eral rules  by  which  the  conduct  of  business  is  determined, 
instructions  may  be  necessary  in  case  either  of  abnormal  con- 
ditions or  of  the  employment  of  inexperienced  persons.  The 
principle  lying  at  the  foundation  of  this  duty  is  the  same  as  m 
the  case  erf  {woviding  iqiplianoes,  vis.,  Halnlity  does  not  attaeh 
on  account  of  the  dangers  of  the  mtuation,  but  for  placing  the 
empkqree  in  a  situation  of  the  hazards  of  which  he  is  excusably 
ignorant.  There  is  no  legal  necessity  for  the  ipving  of  instruc- 
tions or  warnings,  therefore,  where  the  employee's  knowledge 
as  to  conditions  and  means  of  safety  is  equal  to  that  of  the  em- 
ployer, nor  where,  all  the  circumstances  being  considered, 
adequate  knowledge  can  be  attributed  to  him.  A  modifieati(m 
of  this  rule  is  to  be  found,  howevor,  in  tiie  fact  that  it  is  not  a 
men  knowledge  of  conditi<Hui,  but  a  oon^rehensi<m  ci  the 
dangers  attendant  thoneon,  that  must  be  shown  in  ordor  to  ab- 

>  St.  Louis,  A.  A  T.  R.  Co.  «.  Triplett,  64  Ark.  280, 15  S.W.  811 ;  1S8.W.  386. 
*  Ind.,  AeU  1907,  ch.  272 ;  Mioh.,  C.L.,  mo.  0288. 

•Artk.Aetal907.dk  78:  Ifl..R.C.dk9l:  lid.,  Ante  1908.^184:  Pk.. 
B.P.Dia.p9.18«0<lM|.  ■ 


138        LAW  OF  THE  EMPIiOTMENT  OF  LABOR 


■olve  the  miuter  from  rMpoosiUllty.'  WanptmuAtMooM  on 
the  part  oi  the  employee  as  to  age  and  experience  have  been  hdd 

by  some  courts  to  relieve  the  master  cf  the  duty  to  instmet,* 
while  others  deny  such  eflfect.*  Regarding  the  duty  as  one  of 
"proper  care,"  it  would  seem  that  the  employer  cannot  be 
absolved  from  the  duty  of  disclosing  dangers  which  are  not  ob- 
vious by  any  statements  whatever  of  those  whom  he  may  em- 
ploy, thoui^  the  circumstaDoe  oi  the  employee's  tepreaentations 
may  be  conadered. 

SacnoN  69.  DuUm  Non-DdegabU.  —  Coatidamg  the  emr 
ployer's  duties  as  matter  of  personal  obligation,  it  is  mpp§aeat 
that  directions  to  a  servant,  or  the  employment  of  persons  to 
perform  these  functions  in  the  employer's  stead,  will  not  in 
itself  relieve  him  of  the  responsibility ;  but  if  there  be  a  defective 
discharge  of  such  duties  by  the  person  employed  for  their  per- 
formance, the  employer  is  still  liable,  and  wiU  not  be  aUowed  to 
Knm.  himadf  behind  his  agent  In  detwmining  the  question 
of  the  employer's  liability,  the  relations  of  feUownnrvants  are 
involved,  or  rather  the  doctrine  of  vice-principals,  and  the  de- 
cision will  be  found  to  turn  largely  on  the  point  of  whether  the 
negligent  employee  was,  with  reference  to  the  act  occasioning 
the  injury,  a  co-employee,  or  whether  he  was  the  representative 
of  the  employer  in  that  particular  act. 

As  to  duties  prescribed  by  statute,  it  appears  to  be  the  rule 
that,  apart  from  an  express  legislative  declaration,  they  will  be 
classed  as  delegaUe  or  non-delegable  aecwding  to  ti»  common- 
law  classification  of  such  duties. 

« Coomba  ».  New  Bedford  Cordage  Co.,  102  Uam.  872, 3  Am.  Bep.  COS. 
»  Steen  ».  St.  Paul  ft  D.  R.  Co.,  37  Misa.  310, 34  N.W.  113. 
*  LoofaviUe  *  N.  B.  Co. «.  MBhr.  43  G.CJL  48«,  1(M  IW.  m. 


UABUJTT  of  BMPL0TBB8  VOB  INJURIES  139 


SionoN  70.  Negligenc».  —  The  lum-performanoe  of  the 
dtitke  devolving  upon  the  emirfoyer,  when  it  nnihs  in  injury  to 
an  onployee,  mdm  liim  liable  to  a  ehaige  <^  neg^ifmoe.  TUa 
is  defined  aa  bdng  "the  failure  to  do  what  a  reaaonable  and 
prudent  person  would  have  done  under  the  circumstances  of 
the  situation,  or  the  doing  what  such  a  person  under  the  existing 
circumstances  would  not  have  done."  ^  It  is  not  necessary 
that  the  particular  injury  could  have  been  foreseen,  or  the  par- 
ticular manner  of  its  occurrence  anticipated,  but  only  that  the 
pereoo  cliaifed  mif^t  reasonably  have  foreseen  that  injurioua 
ctmsequoiees  mi^t  be  ocpeoted  from  his  act  or  omission.'  The 
negligent  act  will  be  judged  by  the  exigencies  of  the  occasion. 
The  mere  fact  of  injury  is  not  proof  of  n^gence ;  in  fact,  it  is 
said  that  it  does  not  even  carry  a  presumption  of  negligence.' 
The  matter  is  therefore  one  requiring  direct  proof,  unless  the 
conditions  are  so  obviously  dangerous  as  to  preclude  any  other 
inference  than  that  of  negligence.*  The  burden  of  proof  is  there- 
fore generally  held  to  be  on  the  plaintiff,  though  it  has  been  held 
that  such  an  accident  as  a  colliaion  or  the  derailment  of  a  trun 
raised  such  a  presumption  of  nei^igrace  that  the  burden  was 
cast  on  the  railroad  company  of  proving  that  it  was  not  negli- 
gent.* This  is  in  brief  the  effect  of  a  statute  of  Mississippi 
applicable  to  railroads.' 

Section  71.  The  Defenses  of  Employers.  —  For  a  breach  of 
duty  to  an  employee  resulting  in  injury  an  action  will  lie  for  the 
recovery  of  damages.   Employers  are  not  insurers,  however, 

■  Bdtimore  ft  P.  R.  Co.  «.  Jones,  95  U.S.  439. 

'  MobUe,  J.  ft  K.  C.  R.  Co.  v.  Hicks,  91  Mias.  273, 46  So.  360. 

•  Patton  t.  Texas  P.  R.  Co.,  179  U.S.  668.  21  Sup.  Ct.  275. 

« Steurna  t.  Ontario  Spinninc  Co..  184  Pa.  623, 39  Atl.  292. 

*  Wrii^t  t.  Boutbern  R.  Co..  127  N.C.  225, 37  S.E.  221.  See  abo  Shuler  n 
OiHih».K.C.4B.B.Co..87MaApp.ei8.  •  Code.  mo.  196S. 


140        LAW  OP  THE  SMPLOTMENT  OF  LABOR 

and  are  liable  for  the  consequences,  not  of  danfBr,  but  of  nef- 

ligence.  Some  duties  are  by  statute  made  obligatory  upon  the 
employer  to  such  an  extent  as  practically  to  fix  his  Uability  in 
case  of  injuries  entailed  by  their  omission.  Apart  from  such 
•naetaunts,  however,  the  employer  may,  in  case  of  an  action  for 
duufBs,  offer  a  defense  baaed  on  the  principle  expressed  in  the 
maadm,  "Volenti  non  fit  injuria'';  or  he  may  undertake  to 
prove  the  plaintUTa  aaeumption  of  the  risk,  or  his  oontribotory 
negligence ;  or  he  may  rely  on  the  doctrine  of  common  employ- 
ment to  relieve  him  from  liability.* 

The  principle  of  the  maxim,  "Volenti  non  fit  injuria,"  is  of 
general  application,  the  meaning  of  the  phrase  as  freely  ren- 
dered being,  "That  to  which  a  person  assents  is  not  esteemed  in 
law  an  injury."  A  clearer  statement  is  that  by  an  English 
judge,  "One  who  has  invited  or  assented  to  an  act  being  done 
toward  him  cannot,  when  he  suffers  frmn  it,  complain  <rf  it  as  a 
wrong."  In  a  Massachusetts  case  the  doetiine  was  thus  ex- 
pressed: "One  who  knows  of  a  danger  from  the  negligence  of 
another,  and  understands  and  appreciates  the  risk  therefrom 
and  voluntarily  exposes  himself  to  it,  is  precluded  from  recover- 
ing for  an  injury  which  results  from  the  exposure."   In  brief, 
the  injured  person  has  assumed  the  risk;  and,  apart  from  the 
contractual  relation  of  employer  and  employee,  there  is  a  con- 
siderable class  of  cases  m  which  this  defense  to  an  action  for 
damages  may  be  interposed.  The  invitation  or  assent  is  not 
necessarily  or  even  commonly  formal,  but  is  inferable  from 
conduct  and  conditions,  often  subsequent  to  the  entrance  upon 
the  situation  that  gives  rise  to  the  circumstances  to  which  the 
doctrine  is  applied. 


•Mantion  hms  already  been  made  of  the  atatutofy  •brafMim  ol  thm  da* 
Imm  under  ipeeified  oonditioiu.   See  aeo.  46. 


LIABILITY  or  niFLOTIRS  fOR  mJUBIM  141 


Bmmw  73.  AmmnptUm  cf  JNdkt.  — Wbn  a  oontnwt  of 
flmpkqrment  is  entered  up(m,  the  Uw  imp<»ls  into  the  affreaneat 

an  aflBumptkm     the  employee  of  the  mdinaiy  risks  ineklflDt  to 

the  employment,  and  of  such  other  risks  as  may  be  known  and 
appreciated  by  him.  This  is  said  to  be  one  of  the  terms  of  the 
contract,  express  or  implied  from  the  circumstances  of  the  em- 
ployment.' One  seeking  employment  impliedly  represents 
that  he  is  capable  therefw,  and  that  he  comprehends  the  ordi- 
nary risks.>  Another  view  of  the  defence  is  that  it  does  not  arise 
£rom  the  eontoaet  <tf  onptoyment,  but  from  the  status  of  obi- 
ployer  and  employee  as  fixed  by  common  law,  and  is  over  and 
above  the  contract,  being  imposed  by  law  upon  the  parties 
thereto,  regardless  of  their  desires.*  Courts  differ  as  to  whether 
or  not  the  employee  assumes  the  risks  of  his  employer's  negli- 
gence, some  holding  that  he  does  if  such  negligence  is  known ;  * 
though  this  may  be  qualified  by  limiting  the  assumption  to 
cases  othor  than  those  in  which  the  negligence  consists  in  a 
fftilure  to  comply  with  statutory  requiremmts  for  the  em- 
ployee's safety.*  Even  this  exception  has  hem  epedfieaUy 
disallowed,  however,*  while  on  the  other  hand  it  has  been  broadly 
held  that  the  employee  never  assumes  the  risk  of  the  employer's 
negligence.'   "Prima  facie,  a  servant  does  not  assume  any 

>  Nmirmmon  t.  a«veUiid.  etc,  R.  Co.,  86  Fed.  298, 37  CCA.  4P0. 

•  W«cn«r  t.  Chemieal  Co..  147  P».  475, 28  Atl.  772. 

•  Denver  A  R.  O.  R.  Co.  «.  Norgate,  141  Fad.  247;  MartiD  f.  CUoaso.  etc, 
R.  Co.,  118  Iowa  148,  91  N.W.  1034. 

•  CoMol.  Min.  Co.  •.  Batanan,  ITS  P«kI.  57  (CCA.) ;  LabaU.  M .  *  8.,  aec 
271,  caeei  cited. 

•  Ft.  Wayne  etc..  Traction  Co.  v.  Roudebush,  173  Ind.  B7,  88  N.E.  676. 

•  Knidey  ».  Pratt,  148  N.Y.  377,  42  N.E.  986. 

» Qacnon  t.  Machine  Co.,  174  Fed.  477 ;  George  ».  Railway  Co.,  226  Mo.  364, 
125  aw.  196 ;  aee  alM  Hooch  ».  Tezaa  ft  P.  R.  Co.,  100  U.S.  213, 25  L.  Ed.  612  j 
Omw*.  Ghik,  as  Vad.  MS.a»  C.CJL  S74. 


142       LAW  OF  THl  IMFLOTlfINT  OF  LABOB 


riA.  «rKuii  ««>y  K>  ^.iHiilinl  Itt  ih§  mwimiin  of  nwiioniMg  otn 
oo  the  mMter**  part  In  other  words,  the  Abooniul,  univaal, 

or  extraordinary  risks  which  the  servant  doet  not  ■■wimn  m 

being  incident  to  the  work  undertaken  by  him  are  those  which 
would  not  have  existed  if  the  master  had  fulfilled  his  contractual 
duties."  >  It  is  doubtless  U>v  much  to  say,  in  view  of  the  rather 
numerous  exceptions  to  the  i  Je,  that  the  employee  never  n 
■omee  sueh  risks,  though  obviously  the  whole  :^octrine  of  the 
liabffity  d  the  emplojer  for  izguries  to  his  nap^  yBe»  turns  <m 
the  point  involved. 

The  question  of  the  employee's  knowled|B  and  ladentandi^ 
is  in  general  controlling  in  the  matter  of  ordinary  risks,  and, 
where  the  exception  is  allowed,  in  the  matter  of  extraordinary 
risks  as  well.  The  knowh  dge  may  be  either  actual  or  imputed . 
A  workman  of  mature  years  and  ordinary  intelligence,  .flferiiig 
hhnself  for  employment,  is  presumed  to  know  and  appreciate 
the  conditions,  nd  to  assume  the  lisin  ordinarily  incident  to 
the  service  and  to  h«ve  notice  of  nD  mka  whidi,  to  one  of  hfa 
experience  and  eapadty,  are,  or  ought  to  be,  open  and  obvious. 
He  does  not  assume  risks  arismg  from  conditions  of  which  he  was 
actually  and  excusably  ignorant ;  nor  is  he  required  to  use  more 
than  ordinary  care  to  discover  existing  conditions.* 

The  courts  have  sometimes  defined  ordinary  risks  as  those 
that  pertain  to  the  employment  after  the  employer  has  dis- 
charged his  duty  as  to  safe  place,  appliances,  etc.,  and  which 
ordinary  care  <Mi  his  part  cannot  guard  agamst.  Under  another 
roncqrtion  the  word  "ordinary"  is  held  to  be  construed  in  its 
usual  sense.  This  may  be  takoi  to  mean  dtim  tiiat  tiie  risk  is 

« Labatt.  M.  &  8.,  aeca.  2,  270. 

« AUen  «.  Boston  A  M.  R.  Co..  60  N.H.  271. 39  Ati.  978 ;  Conben  t.  BeUeviUe 
BtoM  Co..  50  N  J.L.  226,  SO  AtL  478. 


xjABiLmr  cat  wurumm  worn  duubob  148 


■»  dbfvkwriy  «  norauil  ineidtDl  of  tiie  employment  thai  an  in- 
tdUfwl  obMrver  wooid  leeopriM  it  m  raeh,  aiid  the  cbafen 
WMiiig  thermal  m  oooiteiitly  poaible;  or  H  may  bttg^  that 
the  employmoit  unavoifJably  necessity  faayvdvw  the 

risks,  which  is  much  the  8U»  as  ■  mMit^g  that  th»  maiter'i  ean 
cannot  obviate  them. 

These  risks  are  such  as  aris*  fri  m  the  negligence  of  fellow 
servants,  auiess  the  employer  was  'glig  •  •  in  employing  in- 
competent workman;  <^  from  the  ratur<i  oi  the  instrumen- 
taHkw  used ;  or  iram  the  ooncNti  s,  whether  pormanent  or 
tanpofmry,  of  the  caoduet  and  na^  *e  oi  the  burinen. 

Bilks  which  ma  be  obviat<  -  b;  ne  else  oT  leaaonable 
care  on  the  pari  of  t  h.e  emp''  vci  ar»  da;  J  as  e>  raordinary, 
and  these  th  -  'o^  is  i  ot  to  have  assumeu  without  a 
knowled^'  nd  >  <■■  ehens!  A  the  dangers  arising  from  the 
empk>yer  leglij.  m  I  dangers  are  patent  or  are  brought 
to  tibe  knowlec^  irf  ar  effi  .uj  ee,  his  entering  upon  or  remaining 
bk  Mnriee  k  eoBditeued  tm  *^  waivor  of  any  claim  against  the  em- 
ploynr  Ux  r»  Itii^  dam:  In  the  &8t  ease  he  will  be  held 
tr)  h  ve  ,nad.  lis  con'^  m  the  ^^t  of  existing  conditions; 
and  a«  to  risks  arisi  _  ig  employmoit,  it  has  been  said  that 
if  a  b«  nrant  rontin  -=<  m  appliance  which  he  knows  to  be 

'anper  us,  s  <  if)eb  j     aid  own  risk  and  not  at  that  of  his  em- 

jy  r  -    It     ist  &i    ar,  however,  that  the  risk  was  actually 
d.    While  a  failure  to  notify  the  employer  of  dis- 

ivered  known  risks  w  construed  as  indicatrng  the  employee's 
wilhs  1^  io  e(m  to  woric  while  they  exist,  the  risk  is  not 
thiov  a  up^n  tiie    ipiojrer  by  a  mere  notification  not  replied  to 

>  TutUe  V.  Detroit,  O.  H.  &  M.  Ry.,  122  U.S.  189,  7  Sap.  Ct.  1 166. 
*  WniUngloB  *  O.  R.  Co. «.  MeDMle,  135  UJS.  5S4, 10  Saik  Ct.  1044. 


144        LAW  OF  THE  BMPLOTMENT  OF  LABOR 


hy  his  promlw  tc  rqwir.*  If  the  ftttmwtive  ci  ecmtintifaig  to 

work  with  the  defective  appliance  or  of  leaving  the  employment 
is  offered,  and  the  employee  continues  to  work,  he  will  be  held 
to  have  asswned  the  risk.*  A  promise  to  repair  can  be  relied 
upon  only  for  a  reasonable  time,  after  which  the  risk  will  be 
upon  the  employee. 

SacnoNTS.  Coniraet$  and  R%ii$$  avoiding  iMbiUty. — To  what 
extent  the  deteom  uS  aasumption  of  risks  may  be  carried  is  a 
quetticm  for  the  courts,  and  dlwts  on  the  part  ci  the  empkyet  to 
make  his  worianen  insurers  of  their  own  safety  by  the  adoptimi 
of  rules  or  the  requirement  of  contracts  releasing  the  employer 
from  liability  will  in  general  be  discountenanced.  Thus  it  has 
been  held  that  a  rule  which  required  an  employee  not  to  attempt 
to  use  appliances  unless  he  knew  that  they  were  in  a  proper 
condition  imposed  upon  the  servant  one  of  the  duties  of  the 
master,  t.e.,  that  of  seeing  that  the  imptenmits  furnished  are  in 
a  reawmably  safe  state  of  rq>air;  and  sudi  rule  was  declared 
void.'  Nor  can  an  employnr  by  his  rules  shift  to  the  em- 
ployee the  responsibility  placed  upon  himself  by  a  statute.*  A 
stipulation  exempting  a  railroad  company  from  liability  for 
injuries  caused  to  its  employees  by  its  negligence  is  void  as 
against  public  policy.*  A  contract  executed  subsequent  to  the 

>  Eaat  Tenneaaee,  V.  &.  G.  R.  Co.  i.  DuiBeld.  12  Lm  03, 47  Am.  Bq>.  SIO. 

*LMryt.Boaton*A.R.Co..  139MMi.880.aNJL116.  But  m  JmnD  •. 
Bolt  *  Nut  Co.,  331  Mo.  170, 132  S.  W.  703. 

»  Miasouri,  K.  A  T.  R.  Co.  ».  Wood.  35  8.W.  879  (Tex.  dr.  App.). 

*  CoBmA.  Coal  Co.  •.  Lundak,  190  lU.  6»4, 03  N.E.  1079. 

*Lake8lMm4iM.  S.  R.  Co.  t.  8pMi|fer,44  Ohio  St.  471,8  N.E.  407;  Uttlo 
Rock,  etc..  R.  Co.  •.  Eubanka,  48  Ark.  400, 3  S.W.  808 ;  Richmond  &  D.  R.  Co.  v. 
Jonei,  92  Ala.  218, 9  So.  270 ;  Stone'a  Adm'r.  t .  Union  P.  R.  Co..  33  Utah  185, 89 
PBe.7lS;  JohnM>nf.Ch«lMtoa*B.B.Co..858.C.lS8,»UB.S;  Bowawt. 
B«aMHi,SIM.78a. 


UABILTTT  OF  EMPLOYERS  FOR  INJURIES  145 


cmi^qree's  entranoe  on  Bwvioe,  reUeving  the  enqdiqm  oi  UaUl- 
Uy,  has  been  hdd  void  for  want  of  consideration.*  In  another 
ease,  in  a  lower  court  of  the  same  state  as  the  above,  a  contract 
of  like  import,  though  based  on  sufficient  consideration,  was 
declared  void  as  against  public  policy.*  As  was  said  in  the 
Roeaner  case,  if  there  was  no  negligence,  there  was  no  need  of  a 
ocmtraet  to  exMiq>t  i!b»  defendant  from  liability ;  if  he  was  n^- 
liflent,  the  oontnMst  would  be  of  no  avaiL 
It  has  hem  hdd  ^hwt  an  onployw  could  not  idieve  himself 
contract  of  a  liability  imposed  by  statute,  although  the 
statute  itself  made  no  reference  to  such  contracts.*  An  implied 
wuver  of  the  benefits  of  a  statute  which  requires  frogs  on  a 
rulroad  to  be  blocked  or  dangerous  machinery  to  be  guarded, 
based  on  continuance  in  service  with  knowledge  that  the  law 
has  not  been  complied  with,  h^^  been  held  not  to  be  valid  as  a 
drfense  in  an  action  fw  injuries  resulting  from  Hbe  onployer's 
faihm  to  eraoply  with  tile  statute.'  There  is,  howwer,  a  stormig 
list  (rf  eases  on  the  othCT  Okie.'  In  Georgia  *  and  Penni^lvania,' 
express  contracts  limiting  or  denying  the  employee's  right  of 
action  have  been  upheld.  In  the  former  state  a  later  statute 
declares  such  contracts  void  in  so  far  as  they  affect  any  liability 

« Purdy  ».  Rome,  etc.,  R.  Co.,  126  N. Y.  209,  26  N.E.  2M. 

•  Runt  •.  Herring,  49  N.Y.  St.  126,  21  N.Y.  Supp.  244. 

•  KkUMa  P.  R.  Co.  ».  Peavey,  29  Kmm.  180, 44  Aan.  Sap.  SM;  TuMl  t. 
RutUad  R.  Co..  73  Vt.  347. 61  AU.  6. 

*Nununora  >.  Clevdand,  etc.,  R.  Co.,  9S  FtaL  208,  87,  CCA.  400; 
Dayia  Coal  Co.  •.  PolUnd,  168  Ind.  607,  62  N.E.M3;  Westara  Furniture* 
Mfg.  Co.  t.  Bloom,  76  Kuu.  127.  90  Pac.  821. 

>DwTOT  A  R.  O.  R.  Co.  ff.  Gmuwb. 40  Colo.  106. 00  PIm.  851;  Bt  Look 
OMdi«B  Co.  •.  MUler,  126  Fad.  MS;  (TUtkir  t.  8o«tth  Boatoa  Qm  licbt  Co.; 
158  Ma*.  136, 32  N.E.  1119. 

•  Waatara  *  A.  B.  Go.  f.  »ahop.  80  Oa.  46S. 
'  HMeiMtt  a.  Pa.  B.  Go..  1  Am  Law  Bac  717. 


146        LAW  OF  THE  EMPLOYMENT  OF  LABOR 


fixed  by  statute.  Similar  or  more  fenoral  statutes  exist  in  a 

majority  of  the  states,  and  such  a  provision  is  ''ncorporated  in 
the  federal  liability  law  of  1908.  These  laws  have  received 
countenance  in  a  nimiber  of  cases.'  In  the  Indiana  and  Iowa 
'^ases  cited,  it  wns  necessary  to  decide  on  the  constitutionality 
:  this  particular  provision  of  the  state  statutes.  '  the  Mum- 
ford  case  the  clause  prohibiting  contracts  limitir  li  Mlity  was 
held  applicable  to  a  provision  in  a  contract  of  emp^ ent  limit* 
ing  the  tin»  within  which  actions  to  recover  damages  for  injuries 
might  be  brought,  the  provision  being  condemned  as  contrary 
to  law.  In  the  Quinn  case  it  was  held  that  the  statute  was 
not  contravened  by  an  agreement  in  the  contract  of  employ- 
ment by  which  the  employee  undertook  to  make  a  careful  ex- 
amination of  the  place  of  work  so  that  he  might  understand  its 
dangers. 

SicnoN  74.  ROuf  Ben^.  —  Where  the  feature  of  relief 
boiefits  exists,  a  new  factor  is  intoodueed,  and,  i^Murt  from  itot- 
utes  decUtfing  a  contrary  doctrine,  the'  rulings    the  ooiffte  are 

quite  uniform  in  favor  of  the  contract.  It  is  generally  provkfed 
that  the  acceptance  of  benefits  by  the  injured  employee  shall 
operate  as  a  waiver  of  his  right  of  action  at  law  against  his  em- 
ployer, and  that  if  action  is  brought  and  is  compromised  or 
carried  to  judgment,  no  claim  shall  lie  against  the  fund.  Such 
funds  are  usually  maintained  jointly  by  empuvers  and  em- 
ployees, though  tiie  expense  is  not  necessarily  equally  shared. 

*  Quinn  t.  New  York,  eto.,  R.  Co.,  175  Uum.  150, 55  N.E.  891 ;  Pierae  t.  Van 
Doaen,  78  Fed.  098 ;  Minneapolis  k  St.  L.  R.  C!o.  t.  Herriok,  127  U.S.  210, 8  Sup. 
Ct.  1176;  Pittsburg,  etc.,  R.  Co.  ».  Montgomery,  162  Ind.  1,  40  N.E.  882; 
Powell  •.  Sherwood,  162  Mo.  605, 63  S. W.  485 ;  Mumford  t .  Chicafo,  etc.,  R.  Co., 

128Iow»885,10«N.W.  1185;  KaB«MP.R.Co.s.Ptav«|r.My»»  ArssiKra. 
•M  Shavw   Pmavhrui*  Co.,  71  Fsd.  8U. 


UABIUTT  or  BMFL0TBR8  FOR  INJURIB8  147 


An  agreonfflit  to  MHsept  benefits,  the  acceptance  to  operate  as 
a  waiyor  of  the  ri{^t  of  action,  is  not  regarded  as  contrary  to 
public  policy,  inasmuch  as  it  is  not  the  making  of  the  agreement 
piiw  to  the  injury,  which  would  not  in  itself  be  effective,  but 
the  acceptance  of  benefits  after  the  recdpt  of  the  injury,  that 
bars  the  action.*  The  contract  merely  requires  the  employee 
to  make  his  election  whether  to  apply  to  the  relief  department 
or  to  sue.'  But  if  there  is  lack  of  mutuality,  or  the  defendant 
company  fails  to  show  that  it  assumes  a  fair  proportion  of  the 
bur^i  of  paying  the  boi^ts,  even  the  acceptance  ci  such  bene- 
fits will  not  bar  a  suit  for  damages.'  Nor  will  a  partial  piQrmait 
of  the  agreed  ben^ts  avail  as  a  bar  to  the  action.*  Hie  rtate 
has  the  right  to  promote  the  welfare  and  safety  of  those  within 
its  jurisdiction  by  requiring  all  corporations  and  parsons  to  be 
responsible  for  their  negligence  to  the  full  measure  of  the  loss 
caused  thereby,  a  contract  to  the  contrary  notwithstanding.* 
A  contract  that  purports  to  bind  the  members  of  the  relief  de- 
partment by  the  decision  of  an  "advisory  committee,"  making 
such  decisira  final  and  dedn ve,  is  void,  as  it  undertakes  to  defeat 
the  ocHistitutional  right  of  i^ipeal  to  the  courts  for  the  redress  of 
wrong.* 

The  agreement  that  claims  on  the  ben^t  fund  are  forfeited 
by  suit  in  which  judgment  is  procured  or  a  oon^mnise  is  made 

>  Johnaon  «.  Philadelphia,  etc.,  R.  Co.,  193  Pa.  St.  134, 20  Atl.  SM;  Frank  t. 
Newport  V  a.  Co.,  148  Mich.  637,  112  N.W.  fi04. 

•  Owens  f .  Baltimore  ft  O.  R.  Co.,  36  Fed.  715 ;  LeM  t.  Penn«ylv*i>i>  Co..  10 
Ind.  App.  47.  37  N.E.  423. 

•  Chicago,  B.  A.  Q.  R.  Co.  MiUer,  76  Fed.  430  (CCA.) ;  Atlantic  C.  L.  R. 
Co.  e.  BeMlesr,  54  FU.  311    'So.  781. 

•  Peaa^vania  Co. ,  yaa,  220  111.  428,  77  N.E.  2-.  3. 

•  Chioaco.  M.  A  St.  I  ■        e.  Solan,  169  U.S.  133, 18  Sup.  Ct.  280. 

•  BalttaMWt  ate..  R.  Ce. «.  Staywrd.  fie  <%io  St.  234, 46  N.B.  ff77. 


148        LAW  OF  TBI  BMFLOTMBNT  OF  LABOR 


was  held  valid  in  an  Iowa  ease;  *  but  the  suprane  court  of  New 
Jersey  ruled  that  "the  judgment  intoided  k  <nie  whieh  the 
eUimant  recovers  some  c(Hnpaisation  fw  tiie  hm  aHefsd,''  ai^ 
granted  a  new  trial  in  a  suit  to  recover  the  benefit  whero  a  mit 

for  damages  at  law  had  recovered  nothing.*  Double  recovery 
will  not  generally  be  allowed,  the  provision  of  such  contracts  that 
the  prosecution  of  a  suit  bars  the  claim  to  the  fund  fixing  the 
status  of  the  claimant  thereunder.*  This  question  has  been 
made  the  subject  of  legislation,  however,  and  a  statute  providing 
that  the  accqitaaee  of  insurance,  relief,  or  benefits  from  an  as- 
Boda^m  (tf  the  nature  und^  mmflideratioQ  shall  not  be  a  bar  to 
an  action  to  damages*  has  been  held  constitutional,'  and  the 
fact  cannot  be  ignored  that  in  accepting  such  benefits  the  «n- 
ployee  feels  that  he  is  only  taking  that  to  which  he  is  entitled 
by  reason  of  his  contributions  to  the  fund  without  being  re- 
quired to  forfeit  his  right  to  recover  damages  at  law ;  and  it  is 
within  the  power  of  the  legislature  to  declare  that  the  pajrment 
of  such  benefits  shall  not  operate  to  discharge  an  employer  from 
liability  for  his  negligence  and  shift  the  burden  which  the  state 
has  declared  he  riiould  be  ccmipdled  to  bear.*  A  statute  of 
Scmth  Carolina  goes  a  8tq>  fartiior,  and  requires  raiboad  com- 
panies to  pay  the  agreed  benefit  on  the  death  of  an  employee 
from  accident,  with  the  provision  that  the  acceptance  of  such 
benefit  shidl  not  be  a  bar  to  action.'  This  statute  has  been  de- 

>  Dould  f.  CUeKgo,  etc..  R.  Co.  08  lows  284. 61  N.W.  071. 

>  O'Reilly  «.  Pennsylvania  Co.,  69  N.J.L.  110,  64  Atl.  233. 

•  Baltimore  A  O.  R.  Co. ».  Ray,  30  Ind.  App.  430. 73  N.E.  042. 

•  Iowa,  Ciode.  ne.  9071. 

•  McOuire  v.  Chicaeo,  et«.,  R.  Co.,  131  Iowa  340, 108  N.W.  9(B :  CUeago.  etc.. 
R.  Co.  •.  MoOuira,  210  U.S.  MO,  31  Sup.  Ct.  260. 

•CkiH«B»«to..B.Co.«.MaGW^nvi«.  >  Asto  1001,  No.:48. 


LLkBILFFT  OF  BMPL0TBR8  FOR  INJUBIE8  149 


dated  valid,*  but  H  was  hdd  that  an  employee  recovering 
^f/nnmfpm  ^  ooQqMoaation  to  injuries  oould  nut  aftwwards 
disragard  his  rdinqutohment  <tf  his  interest  in  the  ben^  fund 
and  seek  to  secure  such  interest  in  an  action  at  law.  In  such  a 
case  the  statute  was  held  not  to  apply,  and  the  agreement  made 
by  the  employee  was  held  to  control. 

The  federal  liability  laws  of  1906  *  and  1908  *  contain  pro- 
visions forbidding  contracts  of  waiver,  but  contributions  made 
by  employers  to  benefit  or  relief  societies  may  be  set  o£F  againirt 
any  judgment  for  damages  secured  by  an  injured  mployee. 
Ibis  proviaon  ot  tiie  act  of  1906  was  held  to  be  valid  and  to 
ipve  an  injured  employee  a  right  to  sue  for  damages  in  spite  of 
the  fact  that  he  had  recdved  benefits  from  a  society  of  which  he 
was  a  member,  one  of  the  conditions  being  that  the  receipt  of 
such  benefits  should  bar  his  right  to  sue.* 

While  express  messengers  may  at  common  law  waive  their 
right  of  action  for  damages  in  case  of  injury  against  both  their 
onployer  and  the  transporting  railway  company,  sueh  a  contract 
has  been  hdd  to  be  vdd  as  agamst  the  ndlroad  company  undor 
the  Iowa  statute  above  montioned.* 

SacnoN  75.  Contributory  Negligerux.  —  When  a  risk  involves 
such  a  degree  of  danger  that  a  prudent  man  would  not  assume 
it,  the  defense  to  an  action  by  an  injured  employee  is  not  that 
the  plaintiff  by  his  contract  assimied  the  risk,  but  that  he  was, 
by  his  conduct,  guilty  of  contributory  negligence.   In  practice, 

>  SturgiM  «.  Atlantic  C.L.R.  Co.,  80  S.C.  167. 60  B.E.  688. 

•  Aoti  190ft-100«,  oh.  3073,  34  SUt.  282. 

•  A«ti  1607-1606.      Itt,  W  Stot  6S. 

•  Ooldenstein  «.  Baltim<»«  4  O.  R.  Co..  S7  WMb.  L.  Rtp.  3 ;  Pott«  Smm 
37  Waah.  L.  Rep.  466. 

•OWwn  dtegoN.  W.  B.  Co..  1MM.MS. 


150        LAW  OF  THE  EMPLOTMENT  OF  LABOR 

tile  line  is  not  dearly  drawn  betwem  tlMtwo  defenaee,  nor  is  it 
alwaiya  eaqr  to  (b  bo,  inaamucli  as  the  facts  in  a  given  ease  may 
suppmrt  eitlier  defense.  The  principles  are  distinct,  however, 
as  assumption  of  risk  is  an  implied  or  actnal  agreement,  entered 
into  before  the  hapi)ening  of  the  accident,  to  waive  compensa- 
tion from  the  employer  for  injuries  resulting  therefrom ;  or,  it 
is  an  incident  of  the  contract,  read  into  it  by  the  fixed  rules  of 
law.  If,  however,  there  has  been  cmitrilmtory  negligence, 
there  is  no  reference  to  eitiier  contract  or  status  to  determine 
rii^ts,  but  only  to  the  conduct  of  the  employee.  If  under  all 
the  attendant  circumstances  he  fell  short  of  reasonable  and 
ordinary  care,  the  defense  of  contribut(»y  negligence  will  lie 
against  him. 

The  rule  is  announced  by  Cooley  as  follows :  "  If  the  plaintiff 
or  party  injured,  by  the  exercise  of  ordinary  care  under  the 
circumstances,  mii^t  have  avoided  the  consequences  of  the 
ddoidant's  negligence,  but  did  not,  the  case  is  one  <rf  mutual 
f  auK,  and  tiie  law  will  neither  cast  all  the  consequoiceB  upon 
the  d^oidant,  nor  will  it  attempt  any  ^>portiQnment  thereof." 

The  negligence  of  an  employee  will  not  be  a  bar  to  his  action 
unless  it  is  the  actual  and  proximate  cause  of  his  injury.  Con- 
duct merely  furnishing  the  occasion  or  condition  of  the  injury 
does  not  amount  to  negligence.'  Even  if  the  employee  was 
guilty  of  negligence  which  may  have  contributed  to  the  accident, 
yet  if  the  employer  by  the  exercise  of  ordimury  care  and  diligence 
could  have  avoided  its  occurr«ice,  tiie  aatecedooit  negligence 
of  the  employee  has  been  held  not  to  destroy  his  rig^t  of  action. 
Still  km  will  the  nef^gence  of  the  servant  opente  as  a  d^ense 
whae  it  is  followed  by  willful  or  wanton  negligence  on  the  part 
>  BnHlnridt  t.  B«D  *  n.  Co.,  6»CMa.  SMI,  31  Att.  M4 


LIABILTTT  OF  EMPLOYERS  FOR  INJURIES  151 

<tf  the  mastor.  Where  injories  result  in  death,  the  rig^t  of  the 
pennaal  reprasentative  to  sue,  which  does  not  exist  under  the 
common  law,  but  is  now  given  by  statute  in  most  states,  is 
subject  to  the  same  limitations  as  would  have  been  the  right  of 
the  injured  person  if  he  had  survived. 

Section  76.  Wfiat  Negligence  bars  Recovery.  —  What  does 
and  what  does  not  constitute  such  negligence  as  to  be  a  bar  to 
an  onployee's  churn  for  danmrin  have  not  been  etrnmB^Hy 
ruled  upon  by  the  courts.  Tl»  test  varies  accorduig  to  cireum- 
staaees,  the  rule  being  that  tke  servant  must  craduct  hunsdf  as 
a  fsrudent  poson  would  in  a  like  position. 

A  servant  engaging  in  work  for  which  he  is  not  qualified  by 
previous  eiq)erience,  and  incurring  injury,  is  held  to  have  been 
negligent. 

So  also  if  the  precautions  appropriate  to  dangerous  situations 
are  omitted,  or  if  an  unnecessarily  dangerous  n^thod  of  doing 
inxtk  is  chosen  where  ^  employee  has  the  power  of  choice,  or 
if  he  assumes  or  raanns  in  a  poation  of  unnecessary  danger, 
he  win  be  held  to  be  guilty  of  contributing  to  his  own  mjury. 

The  use  of  defective  or  otherwise  unsuitable  instrumentali- 
ties may  be  negligent,  though  if  a  showmg  of  due  care  in  the 
circumstances  is  made,  and  the  danger  was  not  great  and  ob- 
vious, an  action  for  damages  may  be  maintained. 

Violation  of  orders  or  of  specific  valid  rules  of  which  the  em- 
ployee has  notice,  and  the  neglect  of  warnings  with  reference  to 
any  of  the  aets  named  above  will  usually  be  held  to  imply  neg- 
Ugmoe  as  a  matter  of  law.* 

The  gnaeral  rule  tiiat  the  employee  loses  his  rig^t  to  a  re- 

*CwqMt.L«ke£nMnAM.8.R.Co.,6eMidi.488.S8N.W.Ml;  Looivriil* 
*  N.  B.  Co.  f.  Woocta.  106  Ab.  Ml.  17  Bo.  41. 


152        L4W  OF  TBI  IMFLOTMBNT  OF  LABOR 


oov&ey  by  remaining  at  work  after  the  dfanovcfy  ot  tmaale 
c<mditi<»s  predieatee  a  duty  to  leave  the  aovioe  in  due  time  to 
escape  the  threatened  dangers.  How  far  he  may  omit  thto 
duty  and  still  have  recourse  to  his  employer  for  ccnnpenaation 
for  injuries  cannot  be  absolutely  determined  in  any  general 
sense,  but  it  is  allowable  for  the  employee  to  remain  a  reason- 
able time,  and  especially  if  his  immediate  departure  would 
jeopardize  the  safety  of  the  public  or  the  interests  of  his  em- 
ployers.* 

Sbchon  77.  Comparative  NegUgenee.  —  A  doetrine  of  com- 
parative negUgmoe,  aeo(»ding  to  which  the  eourts  attempt  to 
apportion  the  fault,  and,  if  the  preponderance  of  negligence 
seems  to  be  chargeable  to  the  employer,  to  award  damages  in  a 
corresponding  amount,  has  received  some  countenance  at  com- 
mon law,'  although  in  later  cases  in  the  same  courts  the  doctrine 
has  been  repudiated,  and  a  negligent  employee  is  now  barred 
from  recovory  unless  it  appears  that  his  employer  was  guilty 
of  willful  n^Eligenoe  in  connection  with  the  occasion  of  the  in- 
jury.* The  doetrine  was  seemingly  appnndmated  in  a  reeent 
case  m  wUch  tiie  court  awarded  damages  to  a  plaintiff  whose 
"negligence  was  slight  in  comparison  to  that  of  the  defendant," 
that  of  the  latter  being  held  to  be  the  proximate  cause  of  the 
accident.*  This  case  did  not  properly  present  the  doctrine  of 
comparative  negligence,  however,  but  rather  that  of  "the  last 

>  Irvine  «.  Flint  A  P.  M.  R.  Co.,  89  MioL.  416.  SO  N.  W.  IW3 ;  Pennaylvania 
Co.  f.  RoBqr.  80  Ind.  4U,  48  Am.  R«p.  471;  Houatoo  *  T.  C.  K.  Co.t.  Bnnet, 
49  Texas  Civ.  App.  344,  lOS  S.W.  404 ;  UnyUad  Steal  Co.  t.  MariMy.  88  Md. 

482, 42  AU.  60. 

>  Chicago  ft  A.  R.  Co.  r.  Johnson,  1 18  HL  308. 4  N.B.  381 ;  WkMU  *  W.  R.  Co. 
f .  Davis,  37  Kans.  743. 16  Pao.  78. 

•  Chioafo  4  A.  R.  Co.  t.  Mjran.  96 10.  App.  878. 

« IMbgnN  «.  Ymoo  it  M.  T.  B.  Co.,  119 1«.  7S,  43  So.  «8«. 


LIABILITY  OF  BMPLOYBRS  FOR  INJURIES  163 


otoir  chMwe/' aooording  to  wWoh  the  pMty  who  last  has  a  dear 
opportunity  of  avoiding  an  accident  is  considered  responsible 
for  it,  notwithatanding  the  negUgence  of  the  other  party. 

Apart  fcwn  statutory  enactment,  therefore,  the  doctrine  of 
comparative  negligence  cannot  be  said  to  have  a  foothold  in 
American  jurisprudence  at  the  present  time.  The  Federal 
employers'  UabiUty  law  of  1908 »  and  recent  laws  in  several 
states*  incorporate  tt  in  their  provisions,  the  former  by  declaring 
contributory  negBBsnce  not  to  be  a  bar  to  recovery,  but  that 
4>m«,p>  shaU  be  diminished  in  proportion  to  the  amount  of  the 
employve's  negligence,  the  latter  by  the  use  of  expressions  that 
direct  a  measuring  or  comparison  of  the  degree  of  negligence 
with  which  the  two  parties  are  chargeable,  and  a  proportionate 
award  of  damages.   This  wiU  doubtless  give  rise  to  some  diffi- 
culties in  the  matter  of  admuustration,  but  it  is  clearly  a  more 
humane  rule  than  that  which  refieves  the  employer  from  the 
conMquenoes  of  anything  short  of  willful  nefOigence  in  cases 
when  the  enqdoyee's  negligence  in  any  degree  contributed  to 
his  injury,  and  such  legislation  has  been  declared  constitutional.' 

SrcnoN  78.  The  FeUauyservant  Ruk.  — The  remaining 
defense  to  an  employee's  action  for  damages  is  what  is  known  as 
the  "fellow-servant"  rule,  or  the  doctrine  of  common  employ- 
ment. According  to  this,  where  the  employer  has  discharged 
his  duties  as  to  a  safe  place,  safe  and  suitable  appliances,  com- 
petent feUow-servante,  etc,  he  is  not  Bable  to  an  employee  for 
the  acts  or  negtigenoe  of  any  mere  feUow-servant  or  co-employee, 

>85  8t»t  oh.  149.  „  ». 

1  Nebr..  Acta  1907.  oh.  48;  Nev.,  Acta  1907.  ch.  214;  N.  Dak..  Acta  1907. 
dL  2(S :  8.  Dak..  Acts  1907,  ch.  219 ;  Wis..  Acta  1907,  ch.  264. 

.Ml  » P  It.        CMtto.  17a  Wtd.  HI  (CCA.) ;  KUar ».  C3Wonp>.  etc, 

1.  oe^  188  wifc  aw.  n»  N.w.  aoa. 


164        LAW  OF  THS  EMPLOYMENT  OF  LABOR 


provided  such  co-employee  does  not  moment  the  employer. 
Or,  as  it  hae  been  otherwise  stated,  "A  mastor  is  not  bound  to 

indemnify  one  servant  for  injuries  caused  by  the  negligence  of 
another  servant  in  the  same  common  employment  as  himself, 
unless  the  negligent  se-^^ant  was  the  master's  representative." 
If,  however,  the  neghgence  of  a  coservant  concurs  with  the 
negligence  of  an  employer  m  causing  the  injury,  the  injured 
employee  not  contributing  thereto,  the  onployer  will  be  liable 
in  damages. 

The  well-known  diversity,  not  to  say  confarion  and  oontnii- 
dictoriness  of  the  rulings  of  the  courts  as  to  the  applic«ti<m  of 
this  rule  arises  from  the  lack  of  precise  and  generally  accepted 
definitions  of  the  idea  of  common  employment  and  of  represen- 
tation of  the  master.  The  relations  of  this  doctrine  to  the  other 
elements  which  determine  the  employer's  liability  are  such  that 
practically  all  that  has  been  said  with  reference  to  the  duties  of 
the  employer  and  the  aswimption  of  rides  by  the  employee  must 
be  read  in  the  light  of  the  rulings  of  the  jurisdictional  courts  on 
the  subject,  altiiough  the  principles  inirolved  are  held  to  be  those 
of  general  law.  In  an  opinion  on  a  fellowHservant  case  wfaidi 
was  before  the  Supreme  Court  of  the  United  States  a  few  years 
ago  it  was  said  that  "there  is  perhaps  no  one  matter  upon  which 
there  are  more  conflicting  and  irreconcilable  decisions  in  the 
various  courts  of  the  kmd  than  the  one  as  to  what  is  the  test  of 
common  service,  such  as  to  relieve  the  master  fnm  liaUlity  for 
the  mjury  of  (me  senmnt  throned  the  n^^igenoe  <rf  anothtr."* 
Not  only  do  the  conrta  of  the  various  states  differ,  but  in  the 
individual  stales  are  found  fluctuations  of  opinion  hmn  time  to 

>  Baltimore  ft  O.  R.  t.  Bam^  140  n.a  808,  IS  Sap.  Ct  914;  Noftbwn 
P.  B.  Co.  t.  IXioD,  194  U.S.  838, 94  Sup.  Ct  688. 


LIABIUTK  OF  EMPLOYERS  FOR  INJURIES  155 


time,  and  the  MoqHaaoe  of  new  Biondards,  with  departures 
from  former  poritions,  so  that  it  is  important  to  know  the  date 
of  an  adjudication  in  order  to  determine  the  present  construc- 
tion in  the  state.  In  the  Supreme  Court  itself  we  find  a  deci- 
sion of  1884  strongly  modified  m  1893  and  practically  reversed 
m  1890.^ 

The  attonpt  hu  been  made  in  a  numbor  of  alatee  to  fix  by 
statute  the  relattoos  oi  onj^cqreee  to  one  anoUier,  and  to  deter* 
mino  the  liability  of  the  employer  for  their  acts  or  negligence ; 
and  this  would  appear  to  be  the  only  practical  method  of  at- 
tempting a  solution  of  the  problem  as  it  exists  to-day.  It  must 
be  confessed,  however,  that  even  where  statutes  of  different 
states  are  closely  similar  if  not  identical  in  phraseology,  the 
effect  of  local  interpretations  is  apparent  in  the  varying  con- 
structions adopted. 

The  omnmcm  law  rule  was  enoonoed  in  l&i^and  and  America 
at  about  the  same  time,  ttpptam^  independently,  and  to 
praetieally  the  same  effect.  Subsequent  developments  have 
been  more  favoraUe  to  the  employee  in  this  country  than  in 
England,  however,  some  states  having  apparently  lost  ught  of 
the  foimdations  of  the  rule. 

The  reasons  offered  by  the  courts  for  the  rule  have  been  vari- 
ous, one  being  found  in  the  view  that  the  maater's  leqxmribility 
is  at  an  end  when  he  has  used  wdinaiy  care  to  enqrfoy  com- 
petent aervants.  It  is  held  that  the  employee  assumes  the  risk 
<rf  the  possible  n^gence  of  a  co-enq>kqree  as  one  of  the  md- 
dmts  of  the  employment.'  In  another  opinion  of  our  Supreme 

»Cf.  CUca«o.  M.  A  St.  P.  R.  Co.  ».  Roi^  112  U.S.  377,  6  Sup.  Ct,  184; 
Baltimore  &  O.  R.  Co.  v.  Baugh,  tupra;  and  NefW  Eni^buid  R.  Co.  *.  Connqr.  176 
U.8.  323.  20  Sup.  Ct.  85. 

I  Hm.gh    TezM  *  P.  R.  Co.,  100  U.S.  213. 25  L.  Ed.  012. 


156        LAW  OF  THI  XMPLOTMBNT  07  LABOR 


Ooort  it  WM  Bsid  thai  the  oMouf  rtMon  for  m^^m^f^tm^  ^ 

employer  from  liability  1«  that  the  employee  haa  or  it  aiqppoied 
to  have  such  risks  in  contemplation  when  he  engages  in  the  ser- 
vice, and  his  compensation  js  arranged  accordingly,  so  that  he 
cannot  in  reason  complain  if  he  suffers  from  a  risk  which  he  has 
voluntarily  assumed,  and  for  the  assumption  of  which  he  is 
paid.*  Anolher  reaaon  ia  found  in  alleged  grounds  of  public 
policy,  aa  taoding  to  make  the  employees  mora  watchful  over 
their  own  oonduet  and  that  of  their  feUows,  thus  benefiting  em- 
ployers, employees,  and  the  public  aUke  fay  the  gnater  mn 
with  which  they  perform  their  duties.*  In  close  connection 
herewith  is  the  claim  that  any  marked  enlargement  of  liability 
to  capital  would  lead  to  the  withdrawal  of  capital  from  indus- 
trial enterprise,  thus  reducing  the  opportimities  of  employment 
and  inflicting  damage  upon  the  whole  community.* 

Eaeh  of  theae  reaaona  haa  been  tile  aubjeet  of  adverse  criticism, 
and  no  one  (tf  tliem  aeema  to  give  a  aatifllaet(»y  grmmd  tot  ex- 
cepting employees  from  ibe  bnefite  of  the  doctrine  of  i«ipon> 
deat  superior,  or  for  compelUng  the  emptoyee  to  bear  the  burdoi 

of  "pure  accidents"  which  occur  in  the  prosecution  of  under- 
takings, the  advantages  of  which  are  to  be  reaped  by  the  em- 
ployer. The  last  two  reasons  mentioned  above  have  perhaps 
been  most  frequently  relied  on  as  supporting  the  customary 
rule,  though  no  auch  resultB  aa  are  therein  indicated  have  fol- 
lowed the  adcqytion  of  statutes  greatly  enlargmg  the  rights  of 
enqrioyeea  to  recover  for  injuries  fottowing  upon  induatrial 
aoeidenta. 


1  CUnto.  M.  ft  St.  P.  R.  Co.  V.  Boa,  tupn. 
*Chiaaco.  M.  ft  St.  P.  R.  Co.  •.  Bom. «^ 

•  Mm  PMriNmh  Cod  *  C.  Co.  •.  VMWM.  MS  lad.  398,  SS  N  JB.  7. 


LUBUITT  or  mFLOYBBS  POR  DUUBIM  167 

The  chief  points  requiring  detamliMitifln  in  My  MtJon  ior 
Toiving  the  principle*  under  oonrideratkA  an  ihem  of  MBmoB 
^uskxrma^midrvpmuaai^m^'  If  it  appaftn  tha* 
th*  ininiiM  OTiar'**^  of  are  the  result  of  the  neglifence  of  a 
oMiployee,  tba  only  iwpa  of  the  plaintiff  lies  in  showing  that 
ilM  Miligent  person  was  a  vice-principal,  representing  the 
master  at  the  time,  and  so  devolving  upon  him  a  liabiUty  for 
the  acts  or  omissions  charget^ 

Sbction  79.  Common  EmplomHtnL—Tb^  tat  qoeitioii, 
then,  to  be  considered  is  wha<t  OMrtitotei  ooinmoii  empk^mm 

It  was  Mid  in  a  leading  eaw  thai,  "prima  faoie,  all  who  enter 
into  the  employ  of  a         maitar  aie  engaged  in  a  common 
MTfioe,  and  arc  fello*- servants," »  but  this  broad  statement 
win  not  aanw  as  a  conclusive  test.   Not  only  employment  by 
a  common  master,  but  also  engagement  in  the  performance 
of  duties  that  may  reasonably  be  said  to  tend  to  the  accomplish- 
ment of  the  same  end  is  necessary  to  meet  general  aooeptanee 
by  the  coi  Hs;  nor  is  it  a  sufficient  answer  to  a^  that  all  serve 
the  profit  or  coovenienoe  of  a  oommua  employer.  Wme  an- 
other nrvant  than  the  plaintiff,  employed  fur  &  purpose  entirely 
dH^NBl  from  his  duties,  has  negtfgentiy  aaam^  the  injury  com- 
pialaed  61,  it  may  well  be  said  that  they  are  not  fellow-servants. 
Bat  even  with  this  qualification  the  statement  is  not  definite 
enough  to  be  of  much  use  in  determining  particular  cases,  and 
the  expressions  used  by  judges  in  passing  or,  the  question  of 
common  employment  throw  little  light  on  x'ao  subject  "fla- 
gaged  in  the  same  general  business,*'  "  the  same  general  onder- 
taUng,**  ot  "in  promoting  one  oommon  ableet"  are  frequent 
mo(hn  q|  fflrpt— inw,  thmigh  in  other  easea  the  wwaewhat  more 


I 


158        LAW  OP  THE  EMPLOYMENT  OP  LABOR 

restricted  phrases,  "services  having  an  inunediate  oommon 
object,"  or  "working  in  the  same  place  to  subserve  the  same 
interests,"  are  used.  The  question  involves  both  law  and  facts, 
but  where  the  latter  are  undisputed,  the  decision  becomes  simply 
a  matter  of  Uw,  and  the  trial  jury  wiU  not  pass  upon  it. 
Sbctioh  80.  ConiempUUed  Bi$k».  -  A  theory  that  has  been 

ad<q»ted  in  many  oaaea  i.  that  the  service  is  oommon  if  the  neg. 
ligenoe  of  the  delinquent  servant  was,  in  a  fair  and  reasonable 

sense,  one  of  the  risks  contemplated  by  the  injuit»d  employee  in 
undertaking  or  continuing  in  his  employment.*  This  is  a  refer- 
ence of  the  case  to  the  doctrine  of  assumed  risks  previously 
discussed,  and  involves  the  principles  of  knowledge,  actual  or 
presumptive.   By  this  theory  the  relation  of  the  duties  of  the 
injured  and  the  negUgent  employees  becomes  the  criterion,  to- 
gether with  the  question  of  the  probabiUty  of  the  negligence  of 
the  one  affecting  the  safety  of  the  other.  An  injured  employee's 
action  wiU  not  be  barred  as  matter  of  law  \,y  the  single  fact  of 
service  of  a  common  master  where  the  probabiUties  of  injurious 
consequences  from  the  delinquent  servant's  negligence  wei«  too 
remote  to  be  reasonably  foreseen ; »  since  the  fellow-service  rule 
''should  be  confined  to  those  servants  whose  duties  bring  them 
into  such  juxtaposition  that  one  would  be  enabled  to  observe  the 
negtigenee  of  his  feUows." »  This  has  also  been  termed  the 
•Mociation  theory,  and  the  supreme  court  of  Kentucky  in  a 
recent  case  deebured  it  to  be  the  doctrine  of  that  state,  as  against 
the  departmental  theory.*  Yet,  inasmuch  as  the  question  is 
not  one  simply  of  locaUty,  but  of  likeUhood  of  connected  oon- 

>  Chicago,  M.  A  St.  P.  R.  Co.  r.  Ross.  112  U.S.  377.  6  Sup,  Ct.  184. 

•  Northern  P,  R,  Co.  ».  HamWy.  IM  U.S.  349.  14  Sup.  Ct.  IM. 

•  St.  Louis.  A.  A  T.  R,  Co,  t.  Welch.  72  Tn.  398. 10  aW. «». 
«  LouiiviUe  B.  Co.  t.  HOAttt,  lit  Ky.  48.  IM  aw.  81». 


LIABIUTT  OF  BMPLOTERS  FOR  INJURIES  159 


■equencefl,  m«re  remotooen  is  not  Buffidoit  to  negative  the  idea 
of  ooenvioe  where  the  other  elements  are  present,  thou^  at 
iriiat  pfHnt  the  Une  shall  be  drawn  is  often  difficult  to  determine. 
It  was  said  in  a  recent  case  that  the  assumption  of  risks  is  as 
broad  as  the  employee's  reasonable  anticipation  of  danger.^ 

Section  81.  Departmental  Doctrine. — A  second  theory, 
based  on  a  different  test  from  that  of  contemplated  risk,  is  natu- 
rally suggested  by  the  condderations  indicated  above.  In  the 
apjdication  <A  this  theory  the  classification  turns  oa  the  relation 
<d  employees  in  different  dqMurtments  of  the  «ni^yer's  estab- 
lidunent  or  business,  more  or  less  segregated.  In  the  courts 
in  which  it  is  adopted  the  general  test  is  one  of  the  dentity  or 
diversity  of  the  departments  in  which  the  plaintiff  and  the 
delinquent  employee  were  at  work.  Since,  however,  no  satis- 
factory definition  of  the  term  "department"  has  yet  been  fur- 
nished, the  test  may  be  more  accurately  said  to  be  one  of 
consociaticm  of  duties,  i.e.,  such  a  rdation  of  the  duties  <tf  the 
injured  employee  and  those  oi  th»  ddinqumt  oo^mployee  as  that 
the  tmmu  had  a  reas(mable  (q[>p<nrtunity  for  protecting  hunself 
frmn  injury  by  his  own  efforts.  All  courts  would  unite  in  ruhng 
out  the  defense  of  co-emplojrment  in  certain  classes  of  cases,  and 
there  is  a  hopeless  contrariety  of  views  as  to  where  this  defense 
shall  be  allowed  and  where  denied.  Even  in  those  states  where 
the  defense  is  most  frequently  based  on  what  has  been  called 
the  departmental  doctrine,  this  test  is  not  the  only  and  final 
one,  as  it  is  found  that  while  d^Murtments  may  be  distinct,  those 
ani^oyed  ther«n  may  be  thrown  into  such  contact  tiutt  fellow- 
service  cannot  be  dmied,  and  vice  vena.  While,  therefore,  the 
twotiiewies  presmted  lead  to  real  and  wide  diffoenoes  ol  view, 
*  Lokfe   SmillMtB  P.  R.  Co..  ISO  Pad.  MS. 


160        LAW  OF  THE  BMPLOYMKNT  OF  LABOB 


there  it  a  dsM  of  auei  wbera  they  approaeh,  and  the  eonohi- 
wkts  naehed  therahi  may  be  nfemd  indifferantly  to  the  one 
reason  or  the  other. 

Section  82.  Representaiion  of  the  Emjioyer. —"So  court 
goes  so  far  as  to  assert  without  qualification  that  all  employees 
of  a  common  master,  or  even  in  the  same  department,  are  co- 
employees  in  such  sense  as  to  relieve  the  master  of  responsibility 
for  the  negligent  acts  of  thoee  who  are  his  representatives,  either 
pemuuiently^oraBtothemaUerinhaiid.  But  hemwiia  there 
are  as  ureamcilable  differMioee  as  any  that  have  bem  noted, 

and  H  will  be  ponible  only  to  imaait  tiie  diffowirt  viewi  wHhool 
•ttemptmg  to  sunmiarize  them  or  to  bring  them  into  hanaony. 

There  are  in  general  two  grounds  on  which  adjudications  are 
based :  One,  the  mere  superiority  in  rank  of  the  negligent  em- 
ployee and  the  other,  the  nature  of  the  injurious  act,  i.e., 
whethtt  or  not  it  was  one  which  was  connected  with  the  dis- 
diaige  of  tiie  so-oalled  n<mddetiMe  duties  of  the  oaployer. 
LUn  other  distinodtms  made  m  the  i^UeaytMU  of  lie  fdlow- 
eervant  rule,  there  are  caeee  in  wtiuk  the  deeWea  mi^  be 
reached  by  the  use  of  either  test,  but  in  other  cases  the  jjoptloo 
of  the  one  rule  will  be  found  to  be  decisive  al(^  lines  not  ca- 
pable of  being  reached  by  the  other  unleee  by  giving  Aipeeiai 
meaning  thereto. 

SwmoN  83.  Terf  of  Rank.  —  The  representative  of  the  em- 
pbyer  is  moat  freque«tly  termed  hj  the  eowli  a  viee-orincipal, 
^o^  the  aetual  frnwliens  of  Ui  «m|>lnji—ii  ami  aot  the 
deriguition  by  which  he  is  know  wMe  at  work  wffl  bedeler^ 
minative  in  any  case.  Hiis  ruie  has  been  made  to  extend  ■»  fw 
as  to  relieve  the  employer  even  when  the  iiyiired  employee  in 
food  faith  regarded  the  nflgligMit  employM  at  hie  enperior,  not 


UABIUTT  C9  niFLOTIRS  FOB  INJURWI  161 


knowing  of  the  Isttor's  diadbarie  from  that  poritkm.*  On  the 
other  hand,  a  ooaervaat  intouated  temporarily  with  the  dutiee 
of  a  vioe-iwindpal  must  be  answered  f w  by  the  aiqidoyer  no 
kn  than  if  he  were  permanoitly  holding  the  position.  Repre- 
sentation, however,  must  be  actiial.  In  a  majority  of  the  juris- 
dictions of  the  Union  the  mere  fact  of  superiority  of  rank  is  not 
sufficient  to  charge  the  employer  with  liability  for  the  negligence 
of  the  superior  servant,  though  the  negligence  complained  of 
may  have  been  connected  with  the  living  of  orders.'  Nor  do 
tiwee  oourts  consider  tiiat  the  adding  on  of  the  power  to  Uieaiid 
ilis<ihiniri  is  suffidoit  to  eonvert  a  foreman  of  sabordhiate  grade 
to  tki  nmk  of  vioe-prinoipal,  aa  mere  fear  of  diseharge  wiH  not 
Jitlfj  tiie  asmunption  oi  undue  risks.*  And  this  b  tme  even 
wbsn  there  is  powor  ci  ocmtrol.*  Thus  it  was  said  in  a  recent 
ease  that  "a  servant  who  sustains  an  injury  from  the  negligence 
of  a  superior  agent,  engaged  in  the  same  general  business,  can- 
not maintain  an  action  against  their  common  employer,  although 
he  was  subject  to  the  eontrol  of  such  superior  agent,  and  could 
not  foiid  agiiBst  hki  negligeaee  or  its  otHuequnees."*  This 
rule  is  iMed  om  tiM  thseiy  tha*  the  eootraetitts  employee  as- 
SHMB  Oe  liik  of  his  ■Bperlor's  negiipBee  as  one  of  the  ordmary 
risks  of  his  emi^jrment,  but  is  subject  to  the  restrictions  result- 
ing from  the  application  of  the  doctrine  of  nondelegable  duties. 
This  priasipln  dees  not,  except  in  a  few  states,  extend  to 

>  AllM  t.  Qoodwin,  93  Taan.  385, 21 8.W.  780. 

•Ktemer  «.  Weber,  UI  N.Y.  417,  45  N.B.  880;  lleliMD*.  Hm  Ptoiat 
Q.  If.  Co.,  ftl  Cal.  256. 

•  AMte  rnmAm¥k  CMd  Mia.  Co. «.  Wbdsa,  168  U.S.  86, 18  Av-  Ct  «>• 

*  Vitto  V.  Keoi»n.  15  App.  Div.  329. 44  N.Y.  Supp.  1 ;  Lehigh  ValkgrCiMl  Ca 
».  loam,  86  Pft.  432 :  VUter  Mfg.  Co.  w.  Otte,  167  Fed.  230  (C.C.A.). 

•■mm»  »MrT«rib  L.     *  W.  R.  Co..  146  N.Y.  19a  88  N.B.  711. 


162        LAW  OF  THE  EMPLOYMENT  OP  LABOB 


actual  superintendenta  or  managen  of  aa  aa^iayn'a  buBBon ; 
nor  is  it  vital  that  such  representative  shall  ziot  be  amployed  in 
part  at  actual  labor,  or  that  he  shaU  receive  a  higher  salaiy  than 
his  subordinates.  No  fixed  rule  is  discoverable,  but  to  raider 
the  employer  liable  the  employee  "must  be  more  than  a  mere 
foreman  to  oversee  a  batch  of  hands  and  direct  their  work  under 
the  Bupervirioa  of  the  master." »  Or,  as  stated  in  another  case 
"he  muat  have  ffeneral  power  and  control  over  the  busmess,  and 

not  mere  authority  over  a  certain  claai  of  work  or  a  certain  gang 
of  men."  * 

Section  84.  Superior  Servant  Dodnne.  —  While  such  is  the 
rule  in  the  greater  number  of  American  jurisdictions,  what  is 
known  as  the  "superior  servant  doctrine"  has  been  adopted  in 
a  number  of  states.'   The  form  of  this  rule  varies  in  different 
states,  or  even  in  the  same  court ;  and  there  is  inconsistency  in 
Hs  appUeatkm  to  different  cases,  resulting  from  an  unwilling- 
ness on  the  part  of  some  courts  to  carry  tt  out  to  its  logical  con- 
clusions, and  from  an  indeinitenssB  as  to  the  point  where  it 
shaU  cease  to  control.   It  was  characterised  as  a  "dlsoedited" 
doctrine  in  a  recent  case,*  but  it  is  not  only  recognised  in  a  num- 
ber of  jurisdictions  as  a  rule  of  common  law,  but  has  moieover 
received  statutory  recognition.* 
The  forms  in  which  the  doctrine  is  expressed  vary,  but  aU  are 

« Dobbin  t.  Richmond  &  D.  R.  Co..  81  N.C.  446.  31  Am.  Rep.  612. 

•  New  York,  L.  E.  A  W.  R.  Co.  ».  Bell.  112  Pa.  400,  4  AU  50 

«o  'if  ""^iif  W.M  N.E.  627;  Wiaker  i.  Offlett, 

8.W.  523) ;  Faren  ».  Sellers,  39  La.  Ann.  1011,  3  So.  808. 

•  Luldc  t.  Southern  P.  R.  Co.,  180  Fed.  136, 

•  Cal..  Ac*.  1907.  <*.  »7;  Ohio.  a«,.  Cod.,  «c  fiOie:  8.C.,  Conrt..  Art.  9. 

MO.  lO. 


UABILITT  or  EldPLOTBRS  FOR  INJUBII8  163 


to  the  effect  that  tiie  employer  b  liable  to  an  uguxed  wnidcqree 
wbate  his  iiquiy  is  caused  by  the  esereise  <rf  the  authmity  con- 
tered  by  the  emidoyer  <m  another  onplosree. 

In  one  ease  *  fdlowing  language  was  used :  "Where  the 
maeter  appoints  an  agent  with  a  superintending  control  over  the 
work,  and  with  power  to  employ  and  discharge  hands  and  direct 
and  control  their  movements  in  and  about  the  work,  the  agent 
. . .  stands  in  the  place  of  the  master."  Various  grounds  are  of- 
fered m  support  of  this  view,  the  most  satisfactory  one  bemg 
tiiat  advanced  in  an  eariy  Ohio  ease,*  m  which  the  duty  <tf  supor- 
viskm  and  contrd  was  treated  as  n<mdel^^le;  m,  as  stated 
hi  a  Mteouri  case,*  "the  master,  by  appomting  a  foreman  or 
otha  person  to  superintend  the  work,  with  power  to  direct  the 
men  under  him  how  to  do  it,  thereby  devolves  upon  such  person 
the  performance  of  those  duties  personal  to  the  master." 

Section  85.  Status  of  Manager.  —  It  has  already  been  in- 
dicated that  there  are  some  states  in  which  what  may  be  called 
tlw  "extoeme  view"  of  fellow-eervice  is  h  \d,  t.e.,  that  even  a 
gmeral  manager  k  a  fellow-eervant.*  Thi&  may  be  called  the 
E^i^sh  as  opposed  to  the  American  view,  as  it  prevails  ^ere 
the  rulings  ol  the  House  of  Lords  are  the  precedoit ;  while  in 
by  far  the  greater  number  of  the  states  of  this  country  there  is 
a  recognition  of  an  actual  superintendent  or  general  manager  as 
the  master's  representative,  for  whose  acts  the  master  is  account- 
able.  While  the  cases  involving  the  question  of  vice-principal- 

>  Stephens  «.  Hannibal  ft  St.  J.  R.  Co.,  86  Mo.  221. 

*Clev«iMMi,C.*C.R.Co.v.Kew]r,8(»iioSt.a01.   (See  abo  littl*  Miami 

R.  Co.  V.  Stevens,  20  Ohio  415.) 

•  MUler  V.  Missouri  P.  R.  Co..  109  Mo.  350. 19  S.W.  68. 

« Curiey  v.  Hoff,  62  N.J.L.  758,  42  Atl.  731 ;  Mobile  &  M.R.  Co.  ».  Smith,  69 
Ala.  MS ;  Meehan  v.  Spien  Mfg.  Co.,  172  Mass.  376, 62  N.E.  618 ;  Howd  «.  Miss. 
C.  a.  Co.,  60  Miss.  178. 


164       LKW  OF  TH8  SMPLOTICKNT  OF  LABOB 


■hip  in  this  f om  iMtundly  diMkM  f or  the  most  pwt  00^ 
of  what  may  be  considered  permaiwDt  lelatioiish^,  the  same 

rule  has  been  held  to  apply  to  persons  occupying  the  position 
only  temporarUy ;  as,  for  instance,  in  the  performance  of  specific 
undertakings,  after  the  completion  of  which  the  representative 
would  assume  his  customary  rank  as  co-employee  with  his  tem- 
porary subordinates.   Both  the  scope  and  the  reason  of  the  rule 
an  in  part  indicated  in  the  opinion  given  in  a  New  York  case,' 
bk  whieh  H  wm  held  that  where  the  "master  withdraws  from  the 
manatement  of  the  business,  or  the  burinev  is  of  such  a  nature 
that  it  is  necessarily  committed  to  ageuts,  as  in  the  ease  of 
corporations,  the  master  is  liable  for  the  neglects  and  ftwii— mnw 
of  duty  of  the  one  charged  with  the  selection  of  the  other  ser- 
vants, m  employing  and  selecting  such  servants,  and  in  the 
general  conduct  of  the  business  committed  to  his  care." 

In  some  of  the  states  in  which  the  courts  had  favored  the 
ykm  that  the  fellow-servant  rule  extended  even  to  employees 
in  diaiie  of  work,  legidative  enactments  have  intervened,  pro- 
viding that  for  the  exercise  of  superintendoioe  mtnwted  to  any 
employee  by  the  employer  the  latter  should  be  responsible.* 

Skction  86.  Heads  of  Departmenia.  —  On  principle,  a  court 
that  recognizes  the  manager  of  an  entire  business  as  the  master's 
representative  cannot  well  refuse  similar  recognition  to  persons 
in  charge  of  smgle  branches  of  an  undertaking,  as  in  large  in- 
dustrial undertakings  the  head  of  such  a  branch  is  completely 
in  control  of  the  men  under  him,  and  the  management  of  its 
affairs  is  as  fuHy  in  his  hands  as  if  it  were  an  independent 

« Malone  t.  Hath«w«y.  64  N.Y.  5.  21  Am.  Rep.  573. 

Act.  1809. oh. 614. ««.  127:  Mm. CJonrt.. 

in.  CoMb  aM.  4000. 


UABIUTT  Of  ■MPL0TIR8  POR  INJURIIS  IdS 


business.  Thus  it  has  been  held  by  the  United  States  Suprane 
Court  >  that  tiiere  is  a  "dear  distincticm  to  be  made  in  th^ 
ralatkm  to  thdr  oramKm  principal,  betweoi  servants  of  a  oor- 
pantkia  vtB&n^^g  no  supervision  over  others  engaged  with 
them  in  the  same  empIo3rment,  and  agents  of  the  corporation 
clothed  with  the  control  and  management  of  a  distinct  depart- 
ment in  which  their  duty  is  entirely  that  of  direction  and  super- 
intendence." The  limits  of  the  application  of  this  principle 
are  not  clearly  marked.  The  courts  making  most  frequent  use 
of  it  are  the  federal  courts,  and  their  position  may  be  con- 
sidered as  fairiy  presented  in  the  statement  that  it  is  only  in- 
dividuabwlioare  in  charge  of  separate  bnmches  and  departments 
<rf  Borvice,  and  have  entire  and  absdute  control  therein,  that  are 
iwoperly  to  be  considered,  with  respect  to  employees  under  them, 
as  vice-principals. 

Section  87.  Character  of  Act  as  Test.  —  In  cases  in  which 
vice-principalship  is  conceded  there  is  yet  a  possible  distinction 
as  to  the  kind  of  acts  for  which  the  employer  will  be  held  re- 
spcmsible.  In  the  first  place  it  must  obviously  be  a  negligent 
act ;  and,  secondly,  it  must  be  within  the  scope  of  the  agrait'a 
aaUiority  and  be  connected  with  the  proper  buaness  of  his  eat- 
idoyment.  Besides  these  points,  as  to  which  it  is  only  necessary 
to  establish  the  facts  in  order  to  determine  their  status,  the 
question  of  r^e  official  or  nonofficial  quality  of  the  acts  con- 
sidered may  be  raised. 

In  accordance  with  this  view,  a  doctrine  of  dual  capacity  has 
been  developed,  according  to  which  some  acts  of  the  employer's 
representative  may  be  taken  as  thoee  of  a  mere  servant  and 
not  oi  such  a  nature  as  to  make  the  employer  responsible  for 

>  CUmwo.  M.  *  St.  p.  R.  Co.  t.  Boa.  112  U.8. 377, 6  Sap.  Ct  IM. 


166        LAW  OF  THE  SMPLOTMBNT  OF  LABOR 


negiignuM  tliereiii.t  la  the  oourtB  adopUng  this  doetrine,  the 
negligent  performance  of  the  so-called  "nondehgabie"  datica  by 
one  who  is,  by  virtue  of  his  rank,  conceded  to  be  a  viee-prindpal 
casts  a  burden  on  the  employer,  while  the  same  person  may,  as 
a  coservant,  perform  an  act  of  manual  labor  negligently,  and 
to  the  injury  of  a  fellow-workman,  without  devolving  any  li- 
abiUty  therefor  upon  the  employer.  This  doctrine  also  has 
received  atatutmy  reoogiiiti<m.* 

On  the  other  hand  are  to  be  nmged  thoM  eourts  wfaieh  do  not 
consider  that  the  character  of  a  viee-prindpal  shifti  with  the 
nature  of  his  acts,  holding  that  the  master  is  liable  for  the  neg- 
ligence of  his  representative  whether  the  negligent  act  was  done 
by  his  own  hand  or  by  another  under  his  orders.*  Federal  casn 
supporting  this  view  may  also  be  found.*  In  Missouri  it  was 
recently  declared  by  the  supreme  court  that  the  doctrine  of 
dual  capacity  was  fully  established  in  that  state,'  and  a  number 
of  eases  were  cited  in  support  of  that  view,  beginning  with  Har- 
per tr.  Indianapolis  and  St.  Louis  R.  Co.  (47  Mo.  567,  4  Am. 
Rep.  358).  It  was  held  in  a  Uter  case,  however,*  that  the  neg- 
ligent  performance  by  a  section  foreman  of  ordinary  labor  such 

«  Reed  r.  Stockmeyer.  74  Fed.  186  (CCA.) ;  Mann  Orientel  Print  Works 
II  R.I.  152 ;  Crispin  r.  Babbitt.  81  N.Y.  616. 37  Am.  Rep.  621 ;  St  Louia.  A.  A 
T.  R.  Co.  t.  Torrey,  58  Ark.  217.  24  S.W.  244. 

» Illinois  C.  R.  Co.  t.  Josey's  Adin'x.,  22  Ky.  L.  R.  1796, 61  8. W.  70S  •  Couol 
Kansas  City  Smelting  &  Ret.  Co.  v.  Peterson.  8  Kans.  App.  316.  65  Pac  673- 
Cryrtal  lee  Co. ».  Sherioek,  87  Nebr.  19. 55  N.  W.  294 ;  Purcell ».  Southern  R  Co  ' 
1 19  N.a  728. 28  8.E.  161 :  Bew,  Stone  Co. ..  Kraft.  81  Ohio  St.  287. 27  Am. 

olO. 

,o       '  *       ^  •  ^"^y    MInneapoUa.  etc..  R.  Co., 

36  Fed.  657. 

•  Foiwty  *.  St.  Loub  Tranafer  Co.,  180  Mo.  490,  79  S.W.  664. 

•  HutKm  ».  MJaKHui  P.  B.  Co..  60  Mo.  Aw>.  800. 


LLUnUTT  or  ElfPLOTIRS  FOB  IMJUBIIB  187 


M  ft  oowmmt  would  engage  in,  resulting  in  injury  to  «  woric- 
man  in  hit  gug,  wm  the  negligeiioe  erf  the  employw :  "Tliere 
ii  no  imt  or  logieal  dteUneticm  betwem  the  set  of  the  viee- 
jmndpal  in  nei^igently  ordering  a  servant  to  do  an  imprudent 
thing  and  in  doing  the  same  himself."  In  Texas  also  decisions 
in  apparent  conflict  may  be  found,  some'  denying  the  dual 
capacity  theory,  while  a  case  of  the  same  date '  supports  it. 
Examples  of  lack  of  harmony  could  be  adduced  from  other 
states ;  and,  as  appears  from  the  citations  given,  the  rulings  of 
the  federal  courts  are  not  uiu!(Hnn. 

A  federal  judge  in  a  recent  case  *  declared  that  the  test  of 
rank  has  hem  largely  superseded  in  the  federal  courts  by  the 
test  ol  the  character  of  the  act.  "The  question  is  always," 
Bud  the  judge,  "whether  the  negligence  charged  is  the  neglect 
of  a  primary  and  absolute  duty  of  the  master  to  the  servant. 
If  such  be  its  character,  no  delegation  of  the  performance  of  that 
duty  to  another,  no  matter  how  inferior  his  rank  may  be  in  the 
master's  service,  can  relieve  the  liability  of  the  master  for  its 
neglect ;  "  and  the  characterisation  of  the  superior  servwut 
doctrine  as  discre<tited  indicates  the  same  view  * 

SaonoN  88.  Tetts  not  Mutually  Exdume.  —  It  is  not  to  be 
undmtood  that  the  different  tests  of  vice-principalship  are 
mutually  exclusive  in  any  jurisdiction,  or  even  in  any  case 
m  which  the  question  arises.    The  courts  may  approach  the 

>  8ae  further.  Dayhanh  «.  Hannibal  ft  St.  J.  R.  Co.,  103  Mo.  570,  IS  8.W.  0S4. 
«ad  Run  ».  Wabash  W.  R.  Co.,  1 12  Mo.  45.  20  S.W.  472. 

*  Sweeny  •.  Gulf,  etc.,  R.  Co.,  84  Tex.  433, 19  S.W.  655 ;  Texas  ft  P.  R.  Co.  «. 
Baed,  33  8.W.  118  (Tex.  Civ.  App.). 

*  Gulf.  C.  &  S.  F.  R.  Co.  e.  Schwabbe,  1  Tex.  Qr.  App.  S73. 21  S.W.  706. 

*  Peten  t.  George,  154  Fed.  634. 

*  LuUe  t.  Southern  P.  R.  Co.,  160  Fed.  135. 


168        LAW  or  THS  IMFLOTMINT  OF  LABOB 


qoettioa  fat  dther  way,  or,  -  <w<itMnt|y  happtm,  wphmIom  tf 
used  in  a  single  case  which  refer  mme  to  one  aad  mom  to  the 

other  method  of  determining  the  point  at  issue.  The  geneni 
result  of  using  the  test  of  the  character  of  the  act  may  be  aaid  to 
be  favorable  to  the  employee,  since  under  it  "  an  act  of  the  mae- 
ter"  may  be  performed  by  an  employee  *  f  whatever  rank; 
though  obviouily  it  favon  the  dual  capacity  theory,  and  tends 
fai  10  fkr  to  ttmit  raeoveiy  for  the  aete  of  a  superior. 

It  ie  elear  that  the  opportunity  for  fitigatkiii,  hi  eomieetioii 
with  the  application  of  the  test  of  tiie  oharaeter  of      aet,  Bee 
not  so  much  in  the  acceptance  or  rejeotion  of  feneral  prindplee, 
or  of  the  doctrine  of  representation  as  such,  for  a  determination 
of  these  points  having  been  once  made  in  a  jurisdiction  they  may 
be  said  to  be  the  local  law;  rather,  the  numerous  accumulated 
decW<»i8  bear  mainly  on  the  question  of  the  boundaries  between 
the  fiekl  oovered  by  the  dootrine  of  nondehyible  duties  and 
that  oovered  by  the  fellow-aervaat  doetiine,  or,  aa  otherwiM 
expressed,  between  "the  act  of  a  maatw  and  the  aet  of  aa  em- 
ployee," boundaries  which  are,  as  has  been  said  with  good  reaaon, 
"sometimes  quite  vague  and  shadowy."   Thus  it  is  established 
that  one  of  the  employer's  duties  is  to  use  due  care  to  furnish 
and  maintain  a  safe  place  to  work,  while  a  negligent  act  on  the 
part  <rf  an  employee  may  at  any  moment  render  a  place  unsafe 
for  his  co-emplQyees.  When  or  at  what  point  liability  attaches 
is  a  question  that  comes  before  the  courts  to  be  detombed  on 
the  merits  of  the  particuUr  facte,  and,  apart  from  preoedoitB 
presenting  a  practical  idmtity  of  conditionr,  tlw  qiMstion  may 
be  fairly  considered  an  open  one.   Certain  general  principles 
are,  of  course,  settled  in  any  case,  but,  after  all,  there 
remains  an  undetermined  margin  on  the  merits  of  which 


UABIUTT  OF  nfPLOTIRS  FOR  INJUBUB  IQO 


the  idaintiff  groundt  his  undntaking  for  a  noovny,  hoping 
that  in  hia  partteular  ease  the  scales  will  turn  in  his  faror,  so 
that  iaatead  of  eondusive  risMmcatioaa  beteg  formed,  it  appears 
father  that  the  vohime  at  litigation  relating  to  this  department 

of  the  law  of  employers'  liability  is  steadily  growing. 

SicnoN  89.  Modification  of  Employers'  Liability  by  Statute.  — 
It  appears  to  be  the  consensus  of  legislative  opinion  that  of  all 
the  weak  points  in  the  American  law  of  employers'  liability,  the 
one  that  presents  the  most  objectionable  features  is  that  repre- 
sented by  the  foOcm-aervaat  doetrine.  At  least  it  is  to  this 
phase  that  legislatures  have  most  frequently  addressed  them- 
sdres,  one,  that  of  Cdorado,  having  achieved  the  sde  distinotioa 
ct  ciHnpletely  abrogating  the  doetiine.*  This  statute  was  de> 
dared  constitutional  by  the  supreme  court  of  the  state,*  tlie 
court  ruling  that  the  act  renders  the  employer  liable  for  damages 
resulting  from  injuries  to  an  employee,  caused  by  the  negligence 
of  a  co-employee,  in  the  same  manner  and  to  the  same  extent  as 
if  tiie  negligence  were  that  of  the  employer.  The  law  does  not 
affeet  tiw  ctefnum  ct  assumed  risks  or  otmtributory  negligence. 

Liahility  laws  patterned  more  or  less  doedy  af tor  the  British 
Uw  of  1880  m  this  sidbjeot  ham  hem  enacted  in  a  numbv  <tf 
juiiicBetioos.*  These  acts  are  frequentiy  referred  to  as  "  fellow- 
servant  laws,"  since  their  prindpal  feature  is  the  abrogation, 
aa  to  the  dassea  of  employees  enumerated  and  under  the  condi- 

>  Avp..  M.  ISllf.  ISllf.   8m  aiw  pp.  186,  IST,  198. 

*  Vindicator  Conaol.  Min.  Co. «.  Fintbrook,  36  Colo.  490, 80  Pac.  313. 

•Alft.,  Code,  MO.  8010:  Cal.,  Acts  1007.  ch.  07;  Colo.,  Supp.  sect.  151U 
-ISlle;  Idaho.  AoU  1000,  p.  84;  Ind.,  A.S.,  mo.  7083:  Me.,  Acta  1000,  oh. 
258;  Maaa.,  Aeta  1000.  oh.  614,  aeoa.  127-134;  Mich.,  Acta  1900,  No.  104; 
NJ..  Acta  1000,  eh.  88;  N.Y.,  AcU  1010,  ch.  862;  Pa..  Acta  1007,  Na  829: 
PJL,RJL.aaea.  883-881;  and  Tmom,  Aeta  1909  («««(»  Marios),  eh.  10. 


MICROCOPY  RESOIUTION  TEST  CHART 

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170        LAW  OF  THE  EMPLOTMENT  OF  LABOR 


tions  specified,  of  the  defense  of  common  employment.'  The 
introductory  provision  as  to  defects  in  ways,  etc.,  adds  little  or 
nothing  to  the  common  law  rule  as  followed  in  this  country  as 
to  the  duty  of  the  employer  as  to  safe  places  and  iq)pliance8.' 
The  same  may  be  said  of  the  provision  relative  to  the  rqxwting 
of  facts  by  the  employee,  if  cognizant  thereof ;  though  as  most 
of  the  statutes  make  the  employee's  failure  to  report  a  bar  to 
his  recovery,  if  injured,  while  at  common  law  such  failure  was 
only  an  added  reason  why  he  coula  not,  under  such  circum- 
stances, recover,  it  may  be  said  that  this  provision  places  an 
employee  who  knows  of  the  defect  in  a  more  unfavorable  posi- 
tion than  before,  so  far  as  the  question  of  the  assumption  of 
risk  is  concerned.  Nor  do  these  laws  much  affect  the  defense 
of  contributory  ne^igence.  They  are  chiefly  effective  in  their 
determination  of  responsibility  for  the  acts  of  superiors,  and  id 
designated  classes  of  employees  on  railroads.  As  to  superiors, 
it  may  be  noted  that  different  laws  recognize  both  the  superior 
servant »  and  dual  capacity  *  doctrines.  The  California  statute 
distinctly  presents  the  departmental  doctrine ;  so  that  it  is  clear 
that  even  the  ouMstment  of  statutes  which  deariy  enlarge  tiie 
employe's  responnbility,  as  do  these,  do  not  secure  unifcnmity, 
(dnoe  they  are  both  differently  phrased  and  difforoitiy  con- 
strued. 

The  rule  that  statutes  in  derogation  of  the  common  law  will 
be  strictly  construed  has  generally  been  modified  by  the  state 
courts  in  respect  of  the  acts  above  discussed,  in  order  that  the 

«  CoBm  t.  New  York,  etc..  R.  Co.,  15S  Maas.  21. 28  N.E.  1138. 
>  Ryalls  r.  Mechanics'  MUU,  150  Maas.  190,  22  N.E.  766. 

•  Kansas  City,  M.  &  B.  R.  Co.  v.  Burton,  97  Ala.  240, 12  So.  88. 

•  QmmMa  t.  BoMnbait,  178  N.Y.  147. 70  N.B.  411. 


LIABILITT  OP  EMPLOYERS  FOR  INJURIES  171 


manifest  ends  of  the  luws  may  be  attained.'  They  in  no  way 
interfere  with  the  common  law  rights  of  an  injured  employee, 
and  he  may,  if  he  prefers,  brmg  his  action  at  common  law  instead 
of  under  the  statute. 

Section  90.  SUOuiea  Affecting  DeaigruUed  EmploymeniB.  —  A 
very  considerable  number  of  states  have  laws  applying  specifi- 
cally to  the  budness  of  raihroading,  some  of  them  applying  to  all 
employees,  and  some  only  to  those  engaged  in  the  operation  of 
the  road.  These  laws  range  in  effect  from  the  slightest  possible 
deviation  from  the  principles  of  the  common  law  to  a  complete 
abrogation  of  the  defense  of  fellow-service,  and  important 
changes  in  those  of  contributory  negligence  and  of  assumed 
risks. 

The  constitulionality  of  laws  relating  to  railroads  only  has 
bem  repeatedly  decided  in  their  favor  in  the  face  of  contentions 
that  they  are  discriminatory,  not  affording  railroads  equal  pro- 
tection with  other  busmesses,  and  that  the  laws  deprive  railroad 
companies  of  their  property  without  due  legal  process,  thus 
alleging  that  such  laws  are  in  conflict  with  the  fourteenth  amend- 
ment of  the  Constitution  of  the  United  States.  The  Kansas 
statute  abrogating  the  dei&aas  of  fellow-service  was  attacked 
in  the  United  States  Supreme  Court,*  which  declared  the  law 
valid,  using  in  part  the  fdlowing  language,  which  shows  the 
general  grounds  on  which  such  laws  are  upheld :  — 

"The  greater  part  of  all  legislation  is  special,  either  in  the 
objects  sought  to  be  ascertained  by  it,  or  in  the  extent  of  its 
application.  Such  legislation  does  not  infringe  upon  the  clause 
(rf  the  fourteenth  amendment  requiring  equal  protection  of  the 

«  Mobfle  A  B.  R.  Co. ».  Holbom,  84  Ala.  133,  4  So.  146. 

i  Missouri  P.  R.  Co. ».  Msckey,  127  U.S.  205,  8  Sup.  Ct.  1161. 


172        LAW  OF  THE  EMPLOYMENT  OP  LABOR 


laws,  because  it  is  special  in  its  character.   When  legislaticm 
applies  to  particular  bodies  or  associations,  imposing  upon  them 
additional  liabilities,  it  is  not  open  to  the  objection  that  it 
denies  to  them  the  equal  protection  of  the  laws,  if  all  persons 
brou^t  under  its  influence  are  treated  alike  under  the  same 
conditions.   The  haiardous  character  of  the  business  of  operat- 
ing a  railway  would  seem  to  caU  for  special  legislation  with 
respect  to  railroad  corporations,  having  for  its  object  the  pro- 
tection of  their  employees  as  well  as  the  safety  of  the  public. 
The  business  of  other  corporations  is  not  subject  to  similar 
dangers  to  their  employees,  and  no  objecticiis,  therefore,  can  be 
made  to  the  legislation  on  the  ground  of  its  making  an  unjust 
discrimmation.   It  meets  a  particular  necessity,  and  all  railroad 
companies  are,  without  discrimination,  made  subject  to  the 
same  liabifities." 

Special  laws  relating  to  mine  Uibor »  receive  judicial  support 
on  the  grounds  set  forth  m  the  case  just  dted.* 

Section  91.  Promise  to  Repair.  — In  cases  where  repairs 
are  needed,  and  the  fact  is  known  to  the  servant,  the  risk  in- 
volved in  continuing  in  the  service  under  the  conditions  of  dis- 
repair may  be  shifted  to  the  employer  by  his  giving  a  promise 
to  remedy  the  defective  conditions,  and  the  effect  of  the  promise 
is  the  same  whether  it  is  made  in  response  to  a  complaint  by 
the  servant  or  voluntarily.*  The  fact  that  a  promise  was  made 
does  not  suffice  to  conclude  the  investigation,  however,  but 
serves  only  to  introduce  new  facts  for  consideration.  The 

•  Md..  Act8  1902,  eh.  412;  Mo.,  Aeto  1907,  p.  361 ;  JU..  B.8..  eh.  98;  Ohio, 
Act*  1910,  p.  62, 

•SUte     Muriin.  88  8.W.  923  (Mo.);  Wilmington  Star  Min.  Co.  •.  Pul- 
ton.  206  U.8.  60.  27  Sup.  Ct.  412. 

•  Ybpiiim  *  N.  C.  Wheel  Co. ».  Chalkley,  98  Va.  62, 34  8JS.  97«. 


UABILITT  OF  EMPLOTERS  FOR  INJURIES  173 


promise  must  be  made  by  the  employer  or  his  representative, 
and  must  be  the  inducement  for  the  employee's  continuance  in 
the  situation  where  the  injury  occurred.^ 

Though  the  effect  of  such  a  promise  is  not  entirely  excluded 
from  consideration  in  oases  where  it  was  ^ven  bef c»e  the  be- 
pnning  of  wmk,  the  doctrine  implies  chiefly  to  cases  where  it 
was  made  subsequent  to  such  beginning.  It  is  thai  held  to 
rebut  foe  a  rearonable  length  of  time  the  presumption  that  the 
employee  assiuned  the  risk  or  that  he  was  guilty  of  contributory 
negligence  in  remaining  in  a  place  of  known  danger,  though  it 
does  not  of  itself  entitle  an  injured  employee  to  recovery.' 

Section  92.  Direct  Orders.  —  The  fact  that  an  employee  was 
acting  under  direct  orders  at  the  time  his  injury  was  received  is 
also  influoitial  in  determining  his  right  to  recover  where  such 
wder  had  been  gtvea.*  The  order  must  be  gtven.  by  the  em^ 
jioytx  or  his  representative  actmg  with  due  authority,  though  it 
may  reach  the  employee  through  an  intermediary ;  it  must  also 
be  the  cause  of  the  action  which  resulted  in  the  injury  and  it 
must  be  of  itself  negligent  under  existing  circumstances.*  When 
these  conditions  are  met,  a  presumption  is  raised  in  the  em- 
ployee's favor,  either  that  he  was  excusably  ignorant  of  the 
risks  to  which  his  obedience  exposed  him  or  that  his  action  was 
in  some  d^ree  coerced,  so  that  the  employer's  customary  de- 
fenses ci  assumed  risk  and  of  contributory  nej^igence  are  pro- 
portionately, though  not  absolutely,  n^tived.  If  the  order 

>  BodweU  «.  Mfg.  Co.,  70  N.H.  390, 47  Atl.  613. 

>  CounaeU  *.  BaU,  14S  Mms.  468. 14  N.B.  530 ;  Viisiaia  *  N.C.  Wheal  Co.  t . 
Chmlkley,  tupra. 

•  Haley  v.  Cose,  142  Mass.  316,  7  N.  E.  877. 

*  Patterson  v.  Pittsburg  &  C.  R.  Co.,  76  Pa.  389, 18  Am.  Bep.  412 ;  Bidunond 
A  D.  R.  Co.  V.  Rudd,  88  Va.  648. 14  S.E.  361. 


174        LAW  OF  THE  KMFLOTMKNT  OF  LABOR 


does  not  direct  exposure  to  other  than  the  ordinary,  assumed 
risks,  no  negligence  can  be  charged  to  the  master  in  connection 
therewith.  Ndth^r  do  the  courts  hdd  him  negligent  where  he 
was  ignorant,  actuidly  and  without  fault,  <rf  the  dangers  to 
w\ach  a  servant  would  be  oposed  by  obedience.  But  where 
the  employer  knew  of  the  danger  and  failed  to  warn  the  senrant, 
and  still  more  where  the  servant  was  both  ignorant  and  incapa- 
ble, physically  and  mentally,  of  se^ely  performing  the  work 
directed,  the  order  will  be  held  negligent  and  the  employee  will 
be  f  ^titled  to  recover  for  resulting  injuries. 

SBcnoN  93.  Assurances  of  Safety.  —  In  connection  with  a 
direct  order,  or  in  response  to  some  compbunt  or  inquiry  of  the 
employee,  an  employer  may  give  assurances  of  the  employee's 
safety.  This  may  be  in  the  form  of  a  statement  that  the  work 
does  not  involve  danger  or  that  the  workman  will  be  protected 
in  its  performance.  Where  such  an  assurance  is  given  by  an 
authorized  person,  and  it  is  negligently  given,  so  that  the  em- 
ployee is  tb  2reby  induced  to  do  work  or  to  enter  a  place  other 
than  would  probably  have  been  the  case  apart  from  the  assur- 
ance, the  employee  will  not  be,  as  a  matter  of  law,  chargeable 
with  either  an  assumption  of  the  risk  or  with  contributory  neg- 
ligence if  injury  results.^  This  rule  is  subject  to  the  same  quali- 
fications, on  grounds  of  the  actual  knowledge  of  the  employee 
and  his  going  into  places  of  obvious  danger,  as  have  been  set 
forth  in  other  connections.*  Yet,  inasmuch  as  the  law  regards 
the  employer's  knowledge  of  the  conditions  of  the  employment 
as  superior  to  that  of  the  employee,  it  considers  his  assurance  of 
safety,  especially  when  accompanied  by  an  order  to  proceed,  to 

•  Larson  r.  Haglin.  103  Minn.  257,  114  N.W.  958. 

»  Atlantic  C.  L.  R.  Co.  Jk  Beaaley,  54  Fla.  311, 46  So.  761. 


LIABILITT  OF  EMPLOYERS  FOR  INJURIES  175 


be  sufficient  warrant  for  the  employee  to  lay  aside  his  scruples 
and  to  proceed  with  perhaps  less  vigUance  than  he  would  have 
otherwise  exercised. 

Section  94.  Variation  of  Scope  and  Course  of  Employment.  — 
The  principles  controlling  the  liability  of  the  employer  have 
been  considered  only  in  their  application  to  casra  where  the  in- 
jury was  received  by  a  servant  engaged  in  the  duties  for  which 
he  was  specifically  or  impliedly  hired.  If  the  employee  leaves 
his  customary  work  voluntarily  and  goes  where  he  has  no  right 
to  be  or  undertakes  to  use  machinery  which  it  is  not  his  busuiess 
to  use,  he  is  no  better  than  a  trespasser  to  whom  his  master  owes 
no  duty.'  Acquiescence  by  the  employer  in  the  conduct  of 
the  employee  may  be  construed,  however,  as  extending  the 
scope  of  employment  to  the  new  line  of  duties,  carrying  the 
corresponding  mutual  obligations.  Where  the  act  is  for  the 
employer's  benefit  it  may  be  decided  as  a  matter  of  fact  that 
it  was  reasonably  a  part  of  the  employee's  duty,  though  in  the 
absence  of  both  command  and  acquiescence  recovery  would  be, 
to  say  the  least,  doubtful. 

The  case  is  different  where  there  is  a  specific  direction  from 
the  employer  or  other  competent  person  ordering  a  temporary 
departure  from  the  contractual  lines  of  duty.  The  risks  inci- 
dent to  the  new  employment  are  in  a  sense  extraordinary,  as 
they  are  outride  of  the  regular  line  of  duty  and  were  not  as- 
sumed under  the  contract  relative  thereto.  The  elements  neces- 
sary to  a  recovery  in  cptc  of  injury  resulting  from  the  under- 
taking  of  such  work  are:  that  the  departure  from  the  regular 

>  stags  c.  Edward  Western  Tea  &  Spice  Co.,  169  Mo.  480,  69  S.W.  391 : 
Oreen  *.  Brainerd  *  N.  M.  R.  Co.,  85  Mian.  318. 88  N.W.  974 ;  Stodden  f .  Mfg. 
Co..  198  Iowa  3M.  11«  N.W.  US. 


176       LAW  OV  TBI  miPLOTMBNT  OF  LABOR 


employment  should  be  substantial;  that  it  should  be  in  obedi- 
ence to  the  orders  of  a  competent  person;  and  that  the  order 
given  be  negligent.*  The  mere  fact  that  the  work  was  not  that 
for  which  the  employee  contracteu  is  not  enough,  since  a  com- 
mand of  the  employer  and  obedience  without  objection  by  » 
person  of  mature  years  and  ordinary  ci4)acity  present  in  them- 
selves no  conditions  of  culpability.  If,  however,  the  mast 
knew  of  some  unfitness  on  the  part  of  the  servant  or  of  s« 
increased  danger  in  the  new  situation  of  which  the  employee 
was  uninformed,  the  giving  of  the  order  may  be  considered  as 
negligent.  In  the  absence  of  grounds  on  which  to  support  the 
charge  ai  negUgence,  workoaen  will  generally  be  considered  as 
anunung  the  risk  of  the  new  undertaking,  in  so  far  as  they  are 
known  or  are  of  that  open  and  patent  character  that  charges  a 
person  of  ordinary  intelligence  with  a  knowledge  of  than.* 

Contributory  negligence  is  not  ordinarily  allowed  as  a  defense 
to  an  employer  giving  orders  for  a  departure  from  the  usual  line 
of  service,  the  reason  therefor  being  practically  that  given  above 
where  the  question  of  obedience  to  direct  orders  was  discussed, 
».«.,  that  a  person  will  not  be  heard  to  say  that  it  is  negligence 
to  carry  out  his  own  orders.  One  cannot,  however,  enter  upon 
a  work  invol^ng  obvious  and  extreme  risks  and  dum  the  em- 
ployer's protection  in  so  doing,  nor  can  he  enter  on  work  for 
which  he  knows  himself  to  be  essentially  unfitted  but  as  to 
which  he  m  ikes  no  protest  or  objection.   Still  the  presumption 
that  the  employer  is  better  informed  as  to  the  conditions  of  the 
work  and  the  necessary  qualifications  for  doing  it  properly,  and 
the  rule  of  the  customary  duty  of  obedience  to  a  superior,  will 
serve  to  relieve  the  employee  even  in  such  cases. 

» OalvMtoD  OU  Co. ».  Thompeon.  76  Tei.  286. 13  8.W.  6a 
*  FtftoB  •.  Oinidy.  4S  CCA.  480. 104  Fed.  127. 


UABIXJTT  OF  BMPL0TIR8  VOR  INJURIEa  177 


Thm  variety  of  facts  involved  in  cases  presenting  the  question 
of  covjKe  of  employment  is  so  great  that  it  would  practically 
require  an  enumeration  of  the  decisions  to  present  the  attitude 
of  the  oourts  themm.  The  general  rule  has  been  mentioned, 
that  the  emirioyer  is  not  Ui^le  for  injuries  incurred  by  em- 
ployees gjoiog  beyond  the  Mope  of  thdr  employment.  They 
approximate  the  condition  of  volunteera,  with  whcnn  th^  are 
sometimes  classed.  By  the  term  "volunteers"  is  meant  pep- 
sons  not  in  the  service  of  the  employer  prior  to  their  engaging, 
without  authorization,  in  the  employment  at  which  they  received 
the  injury  complained  of,  and  their  situation  is  in  general  no 
better  than  that  of  trespassers.  They  are  held  to  have  assumed 
uie  limitations  of  servants  without  acquiring  the  right  to  claim 
the  performance  of  a  master's  duties  toward  than.*  They  will 
be  protected  from  wanton  injuries  at  the  hands  of  the  r^ular 
employees,  however,*  and  the  drcumstanoes  may  be  such  that 
they  will  be  held  to  warrant  a  service  rendered  at  the  invitation 
of  persons  not  ordinarily  authorized  to  hire  employees  so  as  to 
give  to  injured  vol':  ight  to  recover.'   Or  it  might  be 

said  that  the  situat  ,e  persons  so  employed  is  modified 

80  that  they  ue  no  longei  regarded  as  volunteers,  at  least  not  as 
trespassers. 

The  reason  for  the  rule  as  to  volunteers  is  that  no  one  can  be 
subjected  to  the  obligations  of  an  employer,  which  are  the  result 
of  contract,  without  his  consent  thereto,  either  express  or  im- 
plied. This  being  the  case,  the  situation  of  a  person  under- 

*Lansan  ».  Tyler,  114  Fed.  716  (C.C.A.). 

•Kentucky  C.  R.  Co.  ».  Oaatineau,  83  Ky.  119;  Ewte  t.  St  Pfeul.  M.  * 
If.  R.  Co.,  56  Minn.  141, 57  N.W.  468. 

» Bradley  v.  New  York  C.  R.  Co..  02  N.Y.  99;  Buifanr  f.  (M  Colony  B.  Co« 
143  Maaa.  635.  10  N.E.  255. 

at 


178        LAW  OF  TBI  BMPLOTMINT  OF  LABOR 


taking  to  render  service,  either  on  his  own  motion  or  at  the 
invitation  of  an  unauthorized  person,  gains  nothing  from  the 
fact  that  the  danger  was  not  appreciated. 

Sbction  95.  DeUrilt  cf  Work.  —  A  general  limHayon  ol  the 
obligations  ot  the  anidoyor  is  to  be  found  m  the  rale  that  he  is 
not  bound  to  supenrue  the  patefy  oporative  details  ci  his  em- 
ployees' undertakings.  He  will  not  be  responsible,  therefore, 
for  merely  transitory  dangers,  "existing  only  on  the  single  oc- 
casion when  the  injury  was  sustained,  and  due  to  no  fault  of 
plan  or  construction,  or  lack  of  repair,  and  to  no  permanent 
defect  or  want  of  safety  in  the  defendant's  works,  or  in  the 
manner  in  which  they  had  been  ordinarily  used."  ^  So,  also,  if 
the  danger  arises  in  the  progress  of  the  work  and  is  one  ol  the 
understood  conditions  of  such  iwogress,  o  liability  attaches 
to  the  employer. 

The  improper  use  of  suitable  instrumentalities,  or  failure  to 
use  those  furnished,  erroneous  choice  of  methods  of  work,  or 
improper  orders  and  assignments  of  subordinates  to  duty  are 
acts  of  a  superior,  for  which  the  employer  will  not  in  general  be 
held  responsible.*  In  order  that  the  employer  may  be  so  re- 
lieved, however,  it  has  been  held  to  be  necessary  that  the  in- 
jured employee  should  have  knowledge  <^  his  superior's  laek  of 
authority  in  respect  of  the  order  pven.*  In  the  same  category  are 
found  the  giving  of  signals,  the  transmismon  of  orders,  and  the 
manipulation  of  instrumentalities  (e.g.,  cars  on  railway  tracks) 
during  the  progress  of  work.*  The  adjustment  of  temporary 
structures  and  appliances  used  in  the  course  of  the  work  are 
within  the  rule  of  nonliability. 

>  Meehan  «.  Spiers  Mfg.  Co.,  172  Mass.  375,  52  N.E.  518. 

*  Cullen  r.  Norton,  126  N.Y.  1,  26  N.E.  906. 

i  Waicunko  «.  Oxford  Paper  Co.,  106  Me.  106, 75  AH.  328. 

«Mwtint.AtdiiKm,T.*S.F.R.Co..l66n.&mO,  178iv>Ot008. 


LIABILITY  OF  BMPLOTERS  FOR  INJURIES  179 

The  reverse  haa  been  held  where  the  appliance  causing  th« 
injury  was  furnished  by  the  employer  himself,  where  there  was 
an  implied  undertaking  that  the  appliance  furnished  should  be 
in  a  completed  condition,  where  the  employer  failed  to  furnish 
miteble  material  {or  the  preparation  of  an  instrumentality, 
irtiere  the  employee  did  not  have  free  ohoioe  in  the  selection  of 
materials,  and  where  the  danger  resulted  from  conditiom  which 
might  properly  be  classed  as  permanent. 

Section  96.  Contracts  oith  Labor  OrgartizaHoru.  —  A  fact<» 
of  minor  importance  hitherto,  but  involving  possibilities  <rf 
considerable  moment,  is  one  appearing  in  connection  with  con- 
tracts in  which  associations  of  workmen  retain  for  themselves 
the  right  to  indicate  the  employment  of  certain  persons  as  fel- 
kyw-workmen,  foranen,  or  for  the  performance  of  special  duties 
in  connection  with  the  employer's  undertaking  Such  a  contract 
operates  as  a  restriction  on  the  employer's  ri^^t  to  freely  con- 
tract for  and  direct  the  services  of  his  employees,  and  in  equal 
measure  diminishes  his  liability  for  their  actions.  Thus,  .yhere 
a  contractor  deals  with  representatives  of  an  organization,  who 
furnish  him  the  desired  number  of  men,  with  a  foreman,  none  of 
them  being  of  his  selection,  he  wiil  not  be  held  responsible  for 
tile  mjury  of  a  workman  resultmg  from  the  negligence  of  the 
forenum;*  and  the  same  view  was  taken  in  a  case  involving  the 
employment  of  a  diot-fim  by  the  members  of  a  union  made  up 
of  the  employees  in  a  mine.*  A  contrary  concludon  was  reached 
in  a  case  involving  much  the  same  conditions,  the  court  saying 
that  it  was,  in  any  case,  incumbent  on  the  employer  to  make 
reasonable  effort  to  ascertain  the  competency  and  fitness  of  an 

«  Farmer  v.  Kearney,  116  La.  722,  39  So.  967. 

»  Edward's  Admr. «.  Lam.,  132  Ky.  32,  119  8.W.  175. 


180  or  TBI  IMFLOTMINT  OW  LABOR 


employee  requiring  special  qualifications,  regardless  of  his  con- 
tract with  the  association ; '  in  view  of  the  nature  of  UMOontraet 
and  the  de«r  {ntration  of  the  partiee  to  ncun  to  the  unkm  the 
ordering  of  the  very  detaUe  involved  in  the  nrrangnnakt,  it 
would  seem  that  the  better  reason  lustaini  the  viewt  of  the 
courts  of  Loubiana  and  Kentucky. 

Sbction  97.  Employers'  Inmranee  againtt  LiabUUy.  —  Em- 
ployers' liability  insurance  is  a  form  of  insurance  by  which  the 
insuring  company  assumes  either  the  liability  of  the  employer 
for  injuries  to  his  employees,  or  the  duty  of  making  good  the 
low  of  the  employer  on  aeoount  <rf  such  liability  The  com- 
pany usually  agreee  to  undertake  the  defense  in  ease  action  is 
brought  in  a  court  of  law,  and  ooaditionB  in  the  polioy  as  to 
notice  of  accidental  injuries  and  of  proposed  suits  must  be  com- 
plied with;*  though  the  courts  will  give  a  reasonable  con- 
struction to  the  language  used.*  Where  the  policy  limits  the 
company's  liability  to  a  reimbursement  of  sums  paid  out  by  the 
insured  employer  on  account  of  damages  paid  after  trial  of  the 
issue,  no  action  lies  by  an  employee  of  an  abeoonding  employer,* 
nor  an  insolvmit  one,*  unee  it  is  the  emptoyer  and  not  the  em- 
ployee who  is  insured,  and,  no  payment  having  htm  made  by 
the  former,  no  liability  under  the  policy  rests  on  the  ocmpany; 
or,  as  said  in  another  case,  such  a  policy  is  not  a  contract  of 
insurance  against  liability,  but  of  indemnity  against  loss  by 

>  Peanon  •.  StMunahip  Co..  51  Waih.  560, 00  Pac.  763. 
« Deer  TnO  ContoL  MJaiot  Co.  t.  Maiyluid  CHiuitjrCo..  Se  Waah.  48. 78 
Pao.  135. 

•  Columbia  Paper  Stoek  Co.  w.  FMdity,  etc.,  Co.  of  Now  Yori^  lOi  Mo.  App. 
167,  78  S.W.  320. 

« Connolly  •.  Bolster,  187  Maw.  266, 72  N.E.  081. 

•  Carter  t.  .Btaa  Life  iBi.  Co.,  7S  Kao.  378, 91  Fae.  178. 


UABILITT  OF  BMPL0TBR8  FOR  INJURIES  181 


MMon  of  HabiUty.*  The  9ompaay'»  eontnet  to  d«inid  in  an 
tetioii  against  an  employer  is  valid  and  its  interest  is  suflScient 
to  protect  it  against  the  charge  of  wrongfully  maintaining  tiia 
employer  in  the  suit  against  him.* 

In  case  of  the  insolvency  of  ar  insured  employer,  an  assign- 
ment of  assets  is  equivalent  to  a  settlement  of  a  perfected  claim 
against  himself,  so  far  as  the  comp  i  ly  is  eonoemed,  and  it  be- 
emnes  at  onoe  Bable  for  the  pro  rate  sum  that  the  judgment  of 
the  injured  employee  would  inoduce  in  the  settlement  of  the 
estate  of  the  insolvent,  and  no  more ;  the  injured  employee  may 
by  a  eross^nll  in  action  against  the  company  by  the  trustee 
secure  the  payment  of  such  amount  to  himself.'  A  settlement 
by  the  company  made  in  good  faith  with  an  employer  for  a 
judgment  obtained  against  him  cuts  off  all  recovery  as  against 
the  company,  however,  even  though  it  transpires  that  the  em- 
ployer was  in  fact  insolvent  at  the  time,  and  had  paid  nothing 
on  the  judgment ;  *  a  fortiori,  a  settlement  of  a  judgment  against 
an  insolvent  onployw  by  tiie  payment  by  him  of  an  agreed 
reduced  sum,  such  sum  being  known  to  the  employee  as  eoming 
from  the  insuring  company,  will  prevent  any  further  recovery 
from  the  company  by  the  employee.' 

If  the  policy  insures  the  employer  against  liability  -.  r.  account 
of  injuries  to  employees,  however,  the  company  assuming  the 
defense  in  legal  proceedings  and  setttement  of  any  loss ;  or  if  it 
stipulates  that  the  company  shall  pay  "all  damages  with  which 
the  insured  might  be  l^^y  charged,  or  required  to  pay  or  for 

*  Frye  v.  Gaa  A  Electric  Co.,  07  Me.  241,  S4  Atl.  395. 

*  Breeden  «.  Frankfort,  etc.,  Ins.  Co..  220  Mo.  327,  119  S.W.  676. 

*  Mom*  f .  Tnvden'  loa.  Co.,  63  N.J.  Eq.  260, 49  Atl.  720. 
«  Hbuui  9.  Fidelity  ft  Camalty  Co.,  107  111.  App.  407. 

*  BiMdm  t.  Frsnkf <»t,  ate,  Ins.  Co.,  tupra. 


182        LAW  OF  THE  EMPLOYMENT  OF  LABOR 


which  it  might  become  liable,"  the  contract  inures  directly  to 
the  benefit  of  the  employee  to  such  an  extent  that  he  may,  after 
judgment  against  the  employer  and  without  waiting  for  settle- 
ment, secure  the  payment  to  himself  of  the  amount  of  the  judg- 
ment by  proceedings  in  garnishment  against  the  company,' 
and  the  fact  of  the  employers'  making  an  assignment  in  bank- 
rup^'jy  before  the  suit  was  begun  does  not  reduce  or  otherwise 
affect  the  claim  of  the  employee  against  the  ompany,*  since  the 
liability  is  fixed  on  the  happenmg  of  the  injury  giving  rise  to  the 
claim,  even  though  the  amount  thereof  has  not  yet  been  deter- 
mined.' 

Where  the  employer  takes  out  a  blanket  policy,  and  separate 
certificates  are  issued  to  the  individual  employees,  from  whose 
wages  deductions  are  made  by  the  company  for  the  payment  of 
premiums,  the  failure  of  the  insurance  company  to  pay  the 
amount  of  the  policy  entails  no  obligation  on  the  employer, 
only  the  company  being  liable.* 

A  policy  covering  accidental  injuries  was  held  to  require  an 
insurance  company  to  reimburse  an  employer  who  had  been 
compelled  to  pay  damages  on  account  of  bodily  disease  con- 
tracted by  an  employee  who  was  put  to  work  in  an  insanitary 
employment ; »  a  policy  will  not  be  construed  to  extend  to 
classes  of  employees  hired  during  the  term  of  its  existence,  but 
engaged  in  a  different  kind  of  employment  from  that  contem- 

•  Roven  r.  Employers'  Liability  Assurance  Corp.,  93  Wis.  201,  67  N.W.  46 ; 
Anoka  Lumber  Co.  ».  Fidelity  &  Casualty  Co.,  63  Minn.  286.  6S  N.W.  303,' 
Pickett ».  Fidelity  &  Casualty  Co.,  60  S.C.  477,  38  S.E.  160. 

*  Anoka  Lumber  Co.  r.  Fidelity  &  Casualty  Co.,  supra. 

'  noston  &  A.  R.  Co.  v.  Mercantile  Trust  A  Deposit  Co.,  82  Md.  535, 84  Atl. 
778 ;  Ross  s.  Am.  Emp.  Liability  Ins.  Co.,  66  N.J.  Eq.  41,  38  Atl.  22. 

♦  Carpenter  ».  Clik»fo  *  E.  L  R.  Co.,  21  Ind.  App.  88,  61  N.E.  493. 

I  Coiombift  Paver  Stock      ».  FidaUtjr,  ete.,  Co.  (rf  New  Yotk.  Miyn. 


LIABILITT  OF  BMPL0TBB8  FOR  INJURIB8  183 


plated  1^  its  tenns,*  but  employmmt  necesBarily  inddoital  to 
the  operati<ms  embraced  by  the  policy  will  be  held  to  be  covered 
thereby,  even  thouc^  not  strictly  of  the  class  of  operations 
described  in  it.'  On  the  other  hand,  the  similarity  of  construc- 
tion work  to  repair  work  will  not  bring  the  former  within  the 
provisions  of  a  policy  intended  to  cover  only  the  latter.'  If  the 
contract  of  insurance  stipulates  that  the  company  will  not  be 
liable  for  injuries  resulting  from  the  employer's  failure  to  main- 
tain the  safety  devices  and  appliances  prescribed  by  law,  the 
company  cannot  withdraw  from  the  defense  of  an  action  on  the 
mere  charge  of  such  failure,  but  must  proceed  until  the  question 
is  determined  in  the  course  of  trial.*  Such  a  provision  in  a 
policy  is  not  repugnant  to  a  general  undertaking  to  indemnify 
the  insured  employer  against  loss  from  common  law  or  statutory 
liability  to  his  employees."  Nor  will  the  provision  in  a  policy 
prohibiting  compromises  by  employers  bar  the  employer's 
claim  to  an  indemnity  where  the  company  denied  its  liability 
and  refused  to  defend,  and  the  employer  compromised  the  claim 
against  him.*  Where  the  company  assumes  the  defense  of  an 
action  and  conducts  it  negligently,  to  the  loss  oi  the  onploya, 
it  is  liable  to  him  for  the  loss  sustained.' 

<  Wollman  v.  Fidelity  ft  Casualty  Co.,  87  Mo.  App.  877. 

•  Fidelity  St  Casualty  Co.  of  New  York  r.  Lone  Oak  Cotton  Oil  &  Gin  Co.. 
36  Tex.  Civ.  App.  260, 80  S.W.  541  (carpenter  employed  to  install  machinery  in  a 
cotton  oil  mill) ;  Hoven  v.  Employers'  Liability  Assurance  Corp.,  93  Wis.  201, 67 
N.W.  46  (policy  covering  operations  connected  with  business  of  iron  and  sted 
works  onbraees  construction  of  buOding  for  use  of  employer  in  business). 

•  Home  Mixture  Guano  Co.  ».  Insurance  Co.,  176  Fed.  600. 

«  Glens  Falls  Portland  Cement  Co.  •.  Travelers'  Ins.  Co.,  162  N.Y.  399,  66 
NJ:.897. 

•  Chicago-Coulterville  Coal  Co.  r.  Fidelity  &  Casualty  Co.,  130  Fed.  957. 
•St.  Louis  Dressed  Beef,  etc.,  Co.  «.  Maryland  Casualty  Co.,  201  U.S.  173,26 

8ap.Ct.400.  >AUi«boroMft.Co.*.IuanmMCo.,  mFed.ttS. 


184        lAW  OF  TBS  SMfLOlJb^^iNT  07  lABOB 


The  .upulatioQ  that  the  insuring  oompany  ihall  be  liable  for 
only  thoae  damages  wiiJi  which  the  onployar  may  be  charged 
after  a  compliance  with  the  law  would  of  itself  pcnnt  toward 

nonliability  where  a  person  was  employed  contrary  to  statute, 
though  the  employer  might  be  himself  liable.  Policies  contain- 
ing a  provision  that  the  company  is  not  liable  for  injuries  to 
children  onployed  in  violation  of  minimum  age  laws  therefore 
allow  no  recovery  in  ease  such  an  illegally  employed  person  is 
injured,  though  judgmrait  runs  against  the  employer.' 

The  states  of  lUinds  *  and  South  Carolina  *  have  laws  looking 
to  the  formation  of  mutual  insurance  companies  by  employers, 
with  a  view  to  affording  members  insurance  or  indemnity  in 
cases  of  loss  on  account  of  accidents  occurring  in  connection 
with  their  business.  The  Illinois  law  restricts  membership  to 
persons  engaged  in  the  same  class  of  manufacturing  or  mining, 
and  requires  not  less  than  twenty  incorporators. 

Sbction  98.  Ituumnee  of  Employees.  —  A  law  of  Maryland  * 
provided  for  oodperative  insurance,  in  the  fom  of  a  fund  to 
which  steam  and  street  railway  companies,  owners  of  mines  and 
quarries,  and  municipalities  engaged  in  sewer  construction  and 
similar  work  might  contribute  according  to  a  fibted  scale  adjusted 
to  the  nature  of  the  employment.  An  amount  equal  to  one  half 
the  payments  might  be  withheld  from  the  wages  of  the  employees 
after  notice.  The  resulting  fund  was  to  be  administered  by 
the  insurance  commismoner  of  the  state,  only  cases  of  accident' J 
dMth  being  provided  for  by  the  paymott  of  a  unifonn  sum. 
The  law  contained  a  provisicm  that  contributors  to  the  fund  were 

»  Mt.  Vernon  Woodboiy  Duek  Co.  t.  Ibmimim  Co.,  Ill  Md.  Ml,  78  Atl. 
106 ;  Frank  Ur  newehr  Co  r.  Insuranoe  Co.,  178  Fud.  18, 98  C.CJL  48a 
*  R.S.,  ch.  73,  sees.  309,  el  $eq. 

*Aetol8e8.No.40.  «Aete  1888.  A  188. 


LIABIUTT  OF  EMPL0TBR8  FOB  INJURIBS  185 


to  be  exempt  from  all  other  forms  of  liability,  thus  depriving  the 
employee  of  his  right  of  action  for  damages  either  at  conmion 
law  ot  vakdet  the  statutes  of  the  state;  and  on  this  ground  the 
law  was  held  to  be  unconstitutional.^ 

A  later  law  of  the  same  state  *  undertakes  to  provide  a  co- 
operative insurance  plan  for  coal  and  clay  miners  in  certain 
counties  of  the  state.  Employers  and  employees  are  to  make 
equal  contributions  to  a  fund  which  is  to  be  collected  and  held 
by  the  treasurers  of  the  counties.  Administration  devolves  on 
the  county  commissioners.  Fixed  amounts  are  named  for 
compensation  hi  casos  of  death,  of  maiming  of  various  described 
kmds,  for  injuries  not  resulting  in  muming,  and  for  medical 
and  burial  expoises.  Suits  for  damages  may  be  brought,  but 
ddng  so  bars  compensation  rights,  and,  conversely,  the  accept- 
ance of  compensation  bars  the  right  to  sue.  A  somewhat  similar 
law  has  been  enacted  by  the  legislature  of  Montana,'  applicable 
to  workmen,  laborers,  and  employees  in  and  around  coal  mines 
and  coal  washers,  excepting  office  employees,  superintendents, 
and  general  managers.  Insurance  under  this  law  is  mandatory, 
the  funds  to  be  provided  by  deductions  from  the  wages  of  all 
anpl<Qrees  coming  within  its  proviaons,  and  by  fixed  payments 
by  the  employes  based  on  the  amount  of  coal  mined  per  month. 
The  fund  is  to  be  administered  by  the  state  treasurer.  Injured 
employees  or  their  representatives  may  sue  to  recover  damages 
independently  of  the  provisions  of  the  act,  out  the  commence- 
ment of  a  suit  of  this  nature  will  operate  as  a  forfeiture  of  the 
right  to  benefits  under  the  act. 

>  Ftanklin  «.  United  Railway  ft  Beetrie  Co.,  Ct.  of  Craamon  PloM  of  Batti- 
mon,  opinion  filed  Apr.  27, 1804. 

•  Aote  1010,  ch.  153  (p.  484).  *  Aoto  1009.  eb.  67. 


186        LAW  OF  THE  EMPLOYMENT  OF  LABOR 


Of  broadw  scope,  covraing  in  fact  the  principal  lines  of  in- 
dustrial employment,  is  the  workmen's  insurance  law  of  Wash- 
ington »  which  requires  all  employers  in  designated  industries, 
classed  as  "extra-hazardous,"  to  pay  into  a  state  accident  fund 
certain  amounts  as  premiums.   These  premiums  are  based  on 
the  nature  of  the  employment  and  the  number  of  workmen 
therein,  and  constitute  a  fund  from  which  payments  are  to  be 
made  to  workmen  su£Fering  from  injury  caused  by  accident 
occurring  in  the  course  of  employment.   Employers  in  other 
industries  than  those  designated  may  elect  to  adopt  the  pro- 
visions of  the  insurance  law,  whereupon  th^  are  relieved  from 
other  liability.   The  legislatures  of  Massachusetts*  and  Ohio* 
have  enacted  laws  of  similar  general  import  with  that  of  Wash- 
ington, though  not  compulsory,  and  applicable  to  all  classes  of 
employers  who  accept  their  provisions.   In  Ohio,  the  classifica- 
tion of  risks  and  the  fixing  of  premium  rates  are  committed 
to  a  state  liability  board,  which  is  charged  with  the  administra- 
tion of  the  law  generally,  while  in  Massachusetts  a  state  in- 
dustrial accident  board  administers  the  law.  While  employers 
may  exercise  their  choice  in  accepting  the  provisions  of  the  stat- 
ute, if  they  fail  to  do  so,  they  are  liable  for  damages  resulting 
from  injuries  to  their  workmen,  and  cannot  offer  as  defenses 
either  assumption  of  risks,  fellow-service,  or  contributory  neg- 
ligence.   The  Massachusetts  act  was  pronounced  constitu- 
tional in  an  advisory  opinion  of  the  supreme  court  of  the 
state,*  in  which  were  considered  both  the  abrogation  of  the 
common  law  d^enses  and  the  adoption  of  the  voluntary  in- 
sure nee  scheme  as  a  substitute  for  liability. 

« Aeto  1911,  ch.  74.  •  Act  approved  July,  28, 1911. 

»  Act  »K»ov«d  Jmw  16, 1811.  *  Opiakm  dAytni  July  M.  Wli. 


CHAPTER  VIII 


workhbn's  compbnsatxon  laws 

Sbction  99.  Federal  Compensation  Law  of  1908.  —  The 
British  law  of  employers'  liability,  both  as  construed  by  the 
courts  of  England  in  common  law  actions  a^*!  as  enacted  in  the 
legislation  of  1880,  has  been  of  large  influence  in  directing  the 
course  of  action  in  this  country,  both  le^slative  and  judicial. 
At  the  present  time,  the  principles  that  control  in  the  United 
States  are  of  comparatively  small  and  diminishing  importance 
in  Great  Britain,  on  account  of  the  adoption  in  that  country  in 
1897  of  a  compensation  act  by  virtue  of  which  the  injured  em- 
ployee secures,  not  a  right  of  action  for  damages,  but  a  grar  t 
of  compoisaticui  payable  by  the  propriet  or  of  the  business  in 
yriuch.  the  employee  was  injured.  This  principle,  generally 
adopted  by  more  than  a  score  of  the  industrial  countries  of  ^be 
world,  received  recognition  to  a  limited  extent  by  an  act  of 
Congress  of  May  30,  1908,^  which  grants  to  "any  person  em- 
ployed by  the  United  States  as  an  artisan  or  laborer  in  any  of 
its  manufacturing  establishments,  arsenals,  or  navy  yards,  or 
ia  the  construction  of  river  and  harbor  or  fortification  work  or 
in  hasardous  employmoit  on  construction  work  in  the  reclama- 
tion of  arid  lands  or  in  the  management  and  control  of  the  same, 

>  Aeta  1907-1906,  ch.  230  (3ft  Stat  886). 
187 


188        LAW  OF  THB  BMPLOYMBNT  OF  LABOB 


m 


or  in  haiardoiu  employinent  under  fhe  Isthmian  Canal  Con- 
minion,"  compensation  fw  injuries  received  in  tlie  course  of  his 
emplosrment  not  due  to  his  own  negligence  or  misconduct.  The 
amount  of  compensation  is  the  rate  of  pay  that  would  have  been 
received  by  the  employee  if  he  had  continued  to  be  employed, 
this  point  being  determined  altogether  by  the  employing  office. 
This  provision  of  the  law  gives  the  injured  employee  the  benefit 
of  any  increase  affecting  employees  of  his  group  and  class  during 
the  ccmtinuance  of  his  mnnpensation  pqrments.  PiQrmakts 
continue  during  disability,  but  for  a  period  limited  to  one  year 
from  the  beginning  of  the  disability  caused  by  the  injiuy.  In 
case  the  injury  results  in  death,  the  widow,  child  or  children 
under  sixteen  years  of  age,  or  a  dependent  parent,  are  entitled 
to  compensation  of  the  same  amount  as  would  have  been  pay- 
able to  the  employee  if  he  had  survived.  No  compensation  is 
provided  unless  the  injuries  cause  disability  for  more  than  fifteen 
days.  Claims  must  be  filed  within  a  "reasonable  time,"  the 
statute  limiting  the  time  for  filing  death  claims  to  not  more  than 
ninety  days  after  the  death  oa  account  ci  which  the  claim  is 
made.  Injured  persons  receiving  compensation  must  be  ex- 
amined as  often  as  directed  by  the  Secretary  of  Commerce  and 
Labor,  at  least  once  every  six  months.  In  practice  this  exami- 
nation is  sometimes  waived  wLerr  the  disability  is  obviously 
permanent,  but  the  effect  of  the  provision  is  usually  to  limit  ap- 
provals of  dums  to  sn-month  periods,  subject  to  extenaon  on 
a  proper  showing  at  the  «q>iration  of  the  period.  Where  a 
person  is  only  partially  incapacitated,  and  is  abte  to  do  lig^t 
work,  but  not  to  resume  tl  e  duties  of  his  regular  employment, 
it  has  been  held  that  the  claim  for  compensation  may  be  ap- 
proved for  the  period  of  a  year,  evea  thouc^  there  may  be  some 


WORKMEN'S  COMPENSATION  LAWS  180 


employmait  during  the  time,  iiusmuoh  as  he  is  entitled  to  a 
year's  wages  at  the  old  rate,  and  is  therefore  entitled  to  the  pro- 
tection of  such  an  approval. 

The  administration  of  the  act  is  committed  by  the  act  itself 
to  the  Secretary  of  Commerce  and  Labor,  who  is  authorized  to 
make  r*»cessary  rules  for  the  award  and  payment  of  the  benefits 
accruing  under  its  provisions.  He  is  also  authorized  to  deter- 
mme  all  questions  of  negligence  or  misconduct,  so  that  the  law 
is  practically  removed  from  the  field  of  litigation,  its  construc- 
Uoa  by  the  Secretary  on  the  points  most  frequently  causing 
diqmte  not  being  subject  to  judicial  review.  The  doctrine  of 
assumed  risks  is  absolutely  eliminated,  as  is  the  defense  of 
fellow-service,  the  trade  risk  falling  on  the  beneficiary  of  the 
undertaking,  where  it  would  seem  properly  to  belong  in  every 
instance;  and  no  employee  is  held  accountable  for  tJ  ^  mis- 
conduct of  a  fellow,  of  whose  actions  he  is  often  inevitably 
ignorant,  and  over  whom  he  has  usually  no  power  of  control, 
even  induectly. 

The  sundry  civil  bill  for  the  year  1912  (act  of  Mareh  4, 1911, 
Public,  No.  525),  extended  the  benefits  of  this  law  to  all  em- 
ployees under  the  Isthmian  Canal  Commission,  eliminating  the 
question  of  hazardous  employment,  and  provided  that  the  ad- 
ministration of  the  law  in  its  application  to  such  employees 
should  devolve  upon  the  chairman  of  the  Commission.  It  also 
extended  the  time  for  filing  death  claims  to  one  year. 

In  administering  the  law,  a  liberal  construction  has  been 
adopted,  following  in  general  the  definitions  and  rulings  of  the 
common  law  as  to  the  terms  "artisan  or  laborer,"  "course  of 
employment,"  "negligence  or  misconduct,"  and  "dependence," 
but  relaxmg  in  a  measure  the  rule  as  to  what  should  be  col- 


190        LAW  or  THB  BMPLOTMBNT  OF  LikBOR 


ridwed  ne^genoe  ci  suofa  nature  as  to  bar  ft  elaim,  with  a  view 
to  oanying  out  the  evklMitbenefidal  intent  of  the  aet  Ille^t- 
imate  children  are  held  to  be  entitled  to  the  benefits  of  the  stat- 
ute, as  it  is  not  one  relating  to  inheritance,  and  the  statute  uses 
the  term  "child  or  children  "  in  an  unqualified  and  presumably 
in  a  popular  sense,  as  offspring.  Trade  diseases,  as  lead  poison- 
ing, do  not  support  a  claim  for  compensation,  since  the  idea  of 
the  word  "accident "  is  held  to  imply  a  more  definite  point  of 
tune  than  would  be  the  case  where  cumulative  effeets  are  the 
results  of  causes  operating  through  a  long  period.  StiU  less  can 
compensation  be  allowed  for  oases  of  iUness  caused  merely  by 
exposure  during  employment,*  though  an  edema  of  the  lungs 
caused  by  inhaling  smoke  from  a  blast  in  a  tunnel,  and  an  ul- 
cerated sore  throat  resulting  from  the  inhalation  of  acid  fumes 
while  repairing  an  acid  tank,  were  held  to  be  injuries  entitling 
to  compensation ;  so  also  of  sunstroke ;  and  of  the  freezing  of 
a  workman's  feet  while  employed  in  an  exposed  place ;  and  of 
the  aggravation  of  a  chronic  appendicitis  by  a  stnun  or  blow, 
leadmg  to  disability  which  had  not  existed  prior  to  the  acci(tent 
causing  the  mjury ;  and  in  a  case  of  disability  caused  by  a  sprun 
accompanied  by  a  rupture  of  the  synovial  sac  surrounding  the 
ligaments  of  the  wrist,  induced  by  repeated  operations  under 
conditions  causing  unusual  effort  in  the  performance  of  work, 
it  was  held  that  "within  the  language  of  the  statute,  an  em- 
ployee may  be  injured  in  the  course  of  his  employment  without 
having  suffered  a  definite  accident."  *  An  error  of  judgn.ent 
or  the  display  of  ignorance  in  procuring  or  following  medical 
advice  is  not  a  bar  to  the  receipt  of  compensation. 


>  28  Opiniona  of  the  Attorney-General,  p.  254. 
*  27  C^inknia  (rf  the  AttonMy<<]>eiiml,  p.  84S. 


WORKMBN'B  COMPBNflATION  LAWS  101 

Presumptions  are  in  favor  of  the  claimant,  as  wher«  injury 
oocumd  in  the  performance  of  worlc  under  conditions  not 
uautUy  attended  by  untowmrd  circumstances,  but  which  in  the 
pvtieular  ease  involved  injury.  A  person  with  a  preexisting 
weakness  suffering  injury  from  an  accident  that  would  not 
presumably  injuriously  affect  a  sound  man  is  entitled  to  com- 
pensation notwithstanding  his  predisposition,  if  the  accident 
was  the  actual  pioximate  cause  of  the  disability.   This  extends 
to  the  case  of  a  workman  who  is  in  a  place  of  danger  in  the 
course  of  his  employment,  and  is  affected  by  epilepsy,  to  which 
he  is  subject,  and  is  injured,  the  disease  being  nothing  more  than 
a  remote  cause;  while  the  position  of  hazard  that  makes  the 
faU  dangerous,  as  from  a  height,  or  into  a  fii«,  is  a  condition  of 
employment,  and  the  injuiy  is  therefore  one  that  was  entitled 
to  compensation.   An  employee  engaged  as  laborer  does  not 
lose  his  status  because  of  the  fact  that  at  tiie  moment  of  the 
accident  causing  his  injury  he  is  employed  at  other  than  strictly 
laborer's  work;  while  a  messenger  or  other  employee  may  be 
detailed  to  work  of  such  nature  as  to  bring  him  within  the  scope 
of  the  act.   Employees  of  contractors  of  the  government  are 
not  employees  of  the  United  States.* 

The  course  of  employment  includes  going  upon  ways  or  con- 
veyances furnished  or  maintained  for  the  purpose  of  going  to 
and  from  work.  One  injured  by  a  blast  at  the  place  where  he 
was  due  to  begin  w..„  -vithin  a  few  minutes  was  present  in  the 
scope  of  his  employment,  as  was  one  who  was  on  his  way  home 
by  the  usual  route  at  the  close  of  work  and  was  injured  at  an- 
other place  than  that  of  his  own  labor ;  so  also  an  employee  in- 
jured by  the  negUgent  act  of  another,  while  the  former  was 
» FoOowint  United  Stotes  •.  DriicoU.  96  U.S.  421. 


102       LAW  or  TBM  IMFLOTMINT  OF  LABOR 


performing  the  required  duty  of  "ringing  in"  at  the  time  clock, 
was  entitled  to  compensation. 

The  payments  bring  compennttory  in  their  nature  are  not  to 
be  regarded  as  gratuities;  if  therefore  an  injured  enqritqree 
submits  a  claim  but  dies  before  it  is  passed  upon,  the  compensa- 
tion payable  for  the  term  of  his  disability  may  be  paid  to  his 
personal  representatives,  since  it  is  a  right  which  survives  him, 
and  does  not  die  with  him  as  does  a  right  to  a  gratuity.'  Sur- 
viving beneficiaries  must,  of  course,  submit  a  separate  claim  for 
the  period  subsequent  to  the  death,  tCTminating  with  the  year 
tot  which  pqrmenta  are  provided. 

The  above  construotion  foM.ow8  in  scnae  measure  the  inter- 
pfetation  put  upon  the  British  compensation  act,  where 
propriate;  and  while  the  compensation  afforded  is  often  en- 
tirely inadequate,  as  in  cases  of  maiming,  permanent  disability, 
and  loss  of  life,  by  a  liberal  regard  for  the  fafr  intendment  of 
the  act,  a  very  considerable  measure  of  relief  is  furnished  to 
a  class  of  employees  who  were  otherwise  practically  without 
redress. 

Tlie  idea  (tf  compensation  had  already  received  recognition 
in  the  case  of  monbera  of  crews  of  lif eHsaving  ot  lif ebrat  staticms, 
who,  if  disabled  by  wound  or  injury  received  or  disease  con- 
tracted in  the  line  of  duty,  may  receive  full  pay  during  one  year, 
and,  on  approval  by  the  Secretary  of  the  Treasury,  during  a 
part  or  all  of  a  second  year ;  *  also  in  the  case  of  railway  mail 
clerks  injured  while  on  duty,  who  continue  to  receive  pay  during 
one  year  if  the  disability  lasts  so  long.  The  personal  represen- 
tatives of  railway  mail  clerks  killed  while  on  duty,  or  dying 

i  XVI  Deciaou  of  the  Comptrollei  of  the  Trearaiy.  477. 
■  A«l  9l  Ml«r  4. 1883, 22  Stet  87. 


WOBKMIN'8  COMFINIATION  LAWS  190 

wttUa  one  yur  ib&mHn  m  »  remit  of  injuiy  received  wbile 
on  duty,  reoehre  the  fixed  nun  of  two  thounnd  doUan.^ 

Sbction  100.  Stak  SiaMn.  —  With  the  exoeptioQ  of  the 
cofiperative  inaurance  law  of  Maryland  (sec.  98),  the  stttte  of 
Massachusetts  was  the  Erst  of  the  United  Stotes  to  eiwot  leff- 
islation  looking  toward  the  substitution  of  compensatoiy  pay- 
ments in  lieu  of  actions  for  damages.*  The  law  provides  for  a 
lubmiMioD  to  the  state  board  of  conciliation  and  arbitration  of 
■ueh  Mheines  or  plana  ae  may  be  proposed  by  employers  as 
•tthetitittei  for  the  qntem  of  Uabifity  existing  at  eoomMm 
and  itatute  law;  payments  are  to  be  based  on  a  peroentate  of 
the  average  earnings  of  the  employees.  When  any  scheme  ii 
approved  by  the  board,  the  employer  may  make  contracts  with 
his  employees  for  his  release  from  liability  at  law  by  the  pay- 
ment of  the  proposed  compensation.   It  is  not  permitted  to  an 
employer  to  make  the  employee's  assent  to  such  a  scheme 
obligatory  as  a  o(mditi<m  to  securing  employment.   It  is  ob- 
vious, however,  that  the  employer  is  not  obliged  to  either  accept 
or  retain  any  employee;  and  that  while  the  employer  would 
not,  under  the  dreumstances,  assign  as  a  reason  for  the  work- 
man's nonemployment  his  unwillingness  to  enter  hito  the  con- 
tract, it  might  in  fact  be  the  controlling  reason,  whidi  the 
employer  is  not  at  all  obliged  to  disclose.' 

While  this  state  was  the  first  to  arrange  by  statutory  enact- 
ment for  a  scheme  of  compensation,  the  first  laws  emoodying 
and  enacting  such  a  scheme  were  passed  by  the  legislature  of 

>  Act  of  May  12. 1910,  36  Stat.  363.  Prior  to  this  date  the  aum  of  SIOOO  had 
been  paid ;  see  appropriation  act,  Aottrf  April  31, 1902, 83  SUt.  lU,  ud  tOm- 
qoent  appropriation  acta. 

*Aetil8aS,eh.480. 

•  Alhir  t.  United  Stirte*,  206  U.8. 181. 38  Sap.  Ct.  277. 


104        LAW  OF  TBI  BMPLOYMINT  OF  LABOR 


New  Tori^.*  The  fint  itetitte  amends  the  former  liability  law 

of  the  state,  chiefly  by  making  any  person  exercising  control  or 
command  a  vice-principal  as  to  those  under  his  direction,  and 
by  making  the  employer  liable  for  injuries  to  the  employees  of 
a  contractor  where  injury  results  from  conditions  within  the 
control  of  the  original  employer.  Restrictions  are  also  placed 
on  the  use  of  tiM  drfenm  of  amimption  of  rfaks  and  oontribu- 
tc«y  nei^gence.  This  statute  then  proceeda  to  enact  a 
penMtioii  aeheme,  the  aooqytaaoe  of  whieh  ii  optkmal  witii 
employers  and  employees,  as  an  attemative  to  the  rights  and 
liabilities  existing  ftt  common  law  w  provided  in  the  state 
liability  law.' 

>  Acta  1910.  eba.  S53. 874. 

*The  compenaation  Kheme  iDvolvet  the  p«yment  of  death  clalma  in  an 
amount  equal  to  twelve  hundred  times  i'  o  employee's  daily  earning!,  where 
dependent*  Mirvive,  and  proportionately  reaueed  am  >unta  if  there  are  only  par* 
tial  dependents,  if  no  dependents  survive,  med  eal  and  burial  expenses  ^n  an 
amount  not  exceeding  one  hundred  dollars  are  to  be  paid.  In  eases  of  nonfatal 
accidents  resulting  in  total  incapacity,  one  half  the  average  weekly  earnings  are 
to  be  paid  during  diiaUlity  not  exceeding  eight  years.  For  partial  incapacity 
the  payment  is  to  be  equal  to  one  half  the  dil!emiee  betweea  tlM  eaminti  before 
and  after  the  injury.  Payments  shall  in  no  ease  exceed  ten  dollars  per  week,  and 
medical  examinations  may  be  held  from  time  to  time  at  the  employer's  expense 
to  determine  the  oontinuanee  and  degree  of  disability. 

Employers  and  employees  accepting  the  scheme  are  to  signify  the  fact  by 
signing  and  filing  an  instrument  to  that  effect  with  the  same  formalities  as  if 
making  a  conveyance  of  real  estate,  the  agreement  to  continue  in  force  during  the 
continuance  of  the  employment  contract  unless  canceled  by  sixty  days'  notice 
in  writing  by  dther  party.  The  agreement  relieves  the  employer  from  liability 
under  common  or  statute  law  unless  the  injury  was  due  to  his  failure  to  obey  an 
order  of  the  commissioner  of  labor  as  to  provisions  for  safety  or  to  hia  serious 
and  willful  misronduet.  The  bringing  of  a  suit  cuts  oif  aU  daim  to  omnpensatfen 
under  the  plan,  and  no  right  accrues  where  the  injury  is  due  to  the  serious  or 
willful  misconduct  of  the  person  injured.  Questions  arising  under  the  compensa- 
tion plan  may  be  settled  by  agreement,  by  arbitration  as  provided  by  the  code 
of  dvil  prooedute,  w  by  an  acti(»  at  law.  The  action  at  law  is  to  Iki  in  the  form 


WORKMIN'S  COllPIMaATION  LAWS  106 


Th«  aeoeptaim  ot  the  proyUons  of  the  second  law  was 
onde  obttiRtoiy  where  thejr  applied.  This  etatute  faivolves 
»  eonrfderatioii  of  the  power  ot  the  iegiiUtura  to  enaet  a 

law  compulsorily  shifting  the  burden  of  the  ride  of  in. 
dustrial  ac'^iuent  from  the  employee  to  the  industry  iteelf, 
and  requiring  Bxed  measures  of  relief  or  compensation 
for  resultant  injuries  to  be  administered  by  the  employer  with- 
out reference  to  his  personal  fault  or  negligence.  Where  only 
an  optional  or  elective  provision  exists,  both  parties  being  free 
to  ehoose,  it  ii  a  matter  of  agreement  or  contract  and  within  the 
power  of  the  parties,  unless  thfaenrdaeor  their  rights  is  shown 
to  be  contrary  to  pubUe  poliey.  A  oompuboiy  stotute,  how- 
ever, must  show  proper  justification  for  its  oiaetment  as  a 
matter  of  public  welfare  within  the  police  power  of  the  state. 
Prior  decwons  tending  to  support  such  a  hiw  exist.  Thus  it  has 

of  a  wit  on  bweh  <rf  coatowt.  mad  tb»  nmi.  tf  fa  tli*  dalmut'.  tmwn,,  H 
A  lump  Mua  eoyariac  •mm  and  protpective  paymenta.  No  aasignment  or 
•tta^ment  can  affect  waekly  paymenta  due  under  the  plan,  nor  wiU  a  claim  foi 
an  attorney's  fee  be  enforceable  unleaa  the  amount  la  approved  in  writing  by  m 
Juitiee  of  the  lupreme  court  or  by  the  juatice  of  the  court  in  which  the  oaae  waa 
triad.  The  pnymenta  rank  aa  preferred  daima  acainst  an  employer'a  aaaeta.  the 
■ame  as  unpaid  wages  for  personal  services.  Railroads  are  exempted  from  the 
operation  of  the  compensation  statute,  and  no  injury  causing  disability  of  Itm 
than  two  weeks'  duration  is  to  be  conaidoNd. 

The  seeond  aet  (ch.  674)  provided  a  compulsory  compensation  scheme  for 
designated  dangerous  employments,  i.t.,  the  eonstruotioa  or  demolition  of  bridges 
or  i  J  iidings  where  iron  or  steel  fnuaework  is  used,  and  the  operation  of  elevatota. 
derricks,  or  hoists  for  the  oonv^ranee  of  materials  in  connection  therewith; 
work  on  soaffoMa  twenty  or  more  feet  in  height  in  the  construction,  alteration, 
lapair  or  painting  of  buildings  or  bridges;  work  involving  danger  from  elec- 
trieally  charged  wires ;  woric  involving  the  use  of  explosives  aa  an  instrumentality 
of  the  fadoatiy;  inroad  empkvmenta,  induding  mafatenaner  of  way;  the 
eonstruction  of  tunnels  and  subways ;  and  all  work  carried  on  under  compressed 
A.  The  details  as  to  compensation  and  administration  are  practically  tlie  same 
M  in  tiM  CMS  of  the  eleethra  statute. 


196        LAW  OF  THB  SMPLOTMENT  OF  LABOR 


been  hdd  that  legal  liability  may  be  charged  even  in  the  ab- 
sence d  fault,  thus  practiciUly  making  the  numager  of  a  bum- 
ness  an  insurer  oi  the  safety  ai  his  customers,  as  in  the  case 
of  a  railroad  company  and  persons  transported  by  it.'  Stat- 
utes are  constitutional  that  modify  or  abrogate  the  defenses 
of  fellow-service,  assumed  risks,  and  contributory  negligence.^ 
Such  legislation  may  go  so  far  as  to  give  the  employee  a  status 
that  is  briefly  described  in  some  statutes  as  being  the  same  as 
if  he  had  not  been  an  employee.* 

The  validity  of  lepslation  adapted  to  the  particular  character 
of  the  undertaking  has  already  been  noted,*  and  the  hasardous 
nature  of  an  employment  is  clearly  recognised  as  warranting  the 
regulation  of  its  working  conditions  by  a  measure  of  iegislative 
interference  with  the  common  law  freedom  of  contract  of  the 
employer  and  employee.*  It  is  clear,  however,  that  a  compen- 
sation law  cannot  be  said  to  address  itself  in  any  direct  manner 
to  the  question  of  the  physical  conditions  of  employment,  and 
that  any  indurect  effect,  as  by  stimulating  employers  to  care  in 
ordc '  to  lighten  the  probable  burdens  of  a  compensation  pro- 
vidon,  could  not  bring  the  law  witiun  the  dam  of  safety  regu- 
lations. 

The  first  case  to  eom»  before  the  courts  under  tho  statute  in 

>  CUrafo,  R.  I.  *  p.  R.  Co.  t.  ZeriMoke,  80  Nebr.  888, 82  N.W.  20 ;  Hune  cbm, 
183  U.S.  582,  22  8ttp.  Ct.  229 :  CUemga,  B.  *  Q.  B.  Co.  t.  Wolfe.  187  UJ3. 838, 23 
Sup.  Ct  847. 

*  F  jward  t.  niinoii  C.  R.  Co.,  207  U.S.  483, 28  Sup.  Ct.  141  (diMentinc  opin- 
ioii,  and  cases  cited) ;  El  Paso  d;  N.  E.  R.  Co.  «.  Gutierres,  215  U.S.  87. 30  Sup. 
Ct.  21 ;  Ives  ».  South  Buffalo  R.  Co.,  201  N.Y.  271,  94  N.E.  431. 

>  Mass.,  4cta  liNW,  oh.  814.  mo.  127 ;  Me.,  Acta  1900,  di.  288. 
«Sec.  90. 

•  MiaMuri  P.  R.  Co. «.  Mackey,  127  U.S.  205, 8  Sup.  Ct.  1 161 ;  Tullu  «.  R.  Co., 
178  U.8. 848. 20  Sop.  Ct.  188 :  Hoiden   BHdy.  189  UJ9. 888, 18  Sttp.  Ct.  883. 


WORKMEN'S  COMPENSATION  LAWS  197 


question  (the  law  providing  compulsory  compensation  in  cer- 
tain dangerous  employments),  was  one  of  injury  to  a  railroad 
employee  without  fault  charged  to  either  the  injured  employee 
or  the  employer,  but  merely  as  a  necessary  risk  of  the  employ- 
ment. In  the  trial  and  appellate  courts  the  act  was  held  to  be 
constitutional,  the  court  statmg  that  the  legislature  thereby 
undertook  merely  to  shift  the  burden  of  the  trade  risk  from  the 
employee  to  the  employer,  which  was  said  to  be  within  its 
power.i  On  appeal  to  the  court  of  appeals  of  the  state,  how- 
ever, the  law  was  declared  unconstitutional.  The  cogency  of 
the  economic  and  equitable  reasons  was  recognized,  but  it  was 
hdd  that  under  existmg  restrictions  on  legislative  action,  it  was 
impossible  constitutionally  to  enforce  a  law  of  this  nature, 
charging  the  employer  with  liabiUty  for  accidents  resulting  from 
no  fault  of  his  own,  thus  taking  his  property  without  due  pro- 
cess of  law.' 

Laws  following  the  principles  of  the  elective  law  of  New  York 
are  found  in  other  states.'  For  employers  who  do  not  accept 
the  compensation  act,  but  stand  on  the  principle  of  liability,  the 
act  may  provide  that  the  defenses  of  fellow-service  and  assumed 

« Ivea  t.  South  Buffalo  R.  Co.,  124  N.Y.  Supp.  920. 

» IvM  ».  South  Buffalo  R.  Co.,  201  N.Y.  271,  94  N.E.  431.  It  ia  of  interest  to 
note  in  this  connection  that  the  court,  while  recognising  the  force  of  the  economic 
ariument  in  favor  of  the  compensation  law,  yet  concluding  that  it  could  not 
validate  the  act  under  consideration,  was  traversing  the  same  ground  over  which 
the  courts  have  frequently  gone  seeking  reasons  to  justify  the  exception  to  the 
rule  of  respondeat  superior  that  is  presented  in  the  fcUow-servant  doctrine, 
thou^  these  courts  reached  the  conclusion  that  the  economic  argument  was 
adequate.  See  see.  78;  alao  <9iaioD  Ma*.  Sop.  Cfc,  July  34,  1911,  on  in- 
surance  bill. 

•  Cal.,  Act  of  April  8, 191 1 ;  lU.,  Act  of  June,  10, 1911 ;  Kana.,  Act  of  Much  18, 
1911 ;  N.H.,  Act  of  April  15,  WU}  NJ.,  Art  of  April  4.  IMl;  Wifc.  Art  of 


198       lAW  OF  THB  EMFL07MIMT  OF  LABOR 


riflks  shall  be  abrogated,  and  a  rule  of  comparative  negligence 
enacted;  while  in  New  Jersey  the  defense  of  oontributoiy 
n^gence  is  done  away  with  enUrefy.  Instead  of  making  tiie 
loss  of  these  defenses  conditional,  they  may  be  restricted  or 
abrogated  absolutely,  by  amendment  of  the  lialnlity  law,  as  in 
California,  New  Hampshire,  and  New  York. 

The  State  of  Nevada  has  a  compulsory  coopensation  law,^ 
applicable  to  a  rather  comprehensive  Ust  of  emplojonents  desig- 
nated as  "  especially  dangerous."  The  employee  has  his  choice 
of  a  claim  under  the  compensation  act  or  a  suit  for  damages, 
the  emptoyer  being  deprived  of  the  defmses  of  fdkm-awvice 
and  assumption  of  risb,  while  that  of  contributory  negligrace 
is  restricted.  Contracts  exempting  the  employer  from  his  obli- 
gations under  the  act  are  prohibited,  but  claims  may  be  settled 
by  conq;Hromise  after  the  injury  has  been  received. 

<  Aet  ivpioved  Mvch  34. 


CHAPTER  IX 


mouoBNGB  or  mPLoraas 

SxcnoN  101.  The  Liability  of  Employees  for  their  Negligent 
—  An  employee  is  liable  to  his  employer  for  damages 
OMued  by  his  neg  igence  or  misconduct  in  the  performance  of 
his  work,!  ^  provision  which  is  embodied  m  the  Field  Codes.' 
The  burden  of  proving  that  the  damage  was  caused  by  such 
negligence  or  riisconduct  is  on  the  employer,*  and  if  the  em- 
ployer's failure  to  furnish  suitable  tools,  materials,  or  appliances 
concurred  \  th  the  employee's  lack  of  care  or  skill  in  causing  the 
damage,  no  recovery  can  be  had.* 

It  has  b«3en  disputed  whether  an  employee  can  recover  dam- 
ages against  a  fellowHservant  for  negligence  causing  injury,* 
but  the  better  doctrine  is  to  the  ^ect  that  he  can ;  *  and  clearly 
no  snf^eat  reawm  appom  why  a  man  diould  be  rdieved  from 
liability  fw  his  miso<mduct  merely  becMise  its  victim  is  one  who 
is  in  the  same  ea^oymeat  with  himidf  ,  sueh  liabUily  resting 

i  Mobile,  etc..  R.  Co.  t.  aanton,  69  Ala.  »»,  81  Am.  Bap.  15;  Hllyaid  t. 
Cnbtree,  11  Tez.  264,  62  Am.  Deo.  47S. 
•Oil.,  Or.  Code,  mo.  1990. 
»  Newton  ».  Pope,  1  Cowen  109  (N.Y.). 

•  Wilder  w.  Stanley,  40  Vt.  105. 

•  Albw  t.  JaqoUh,  70  MaM.  90. 04  Am.  Doe.  80;  StorvM  t.  E.  Co.,  1  Ohio 
Deo.  835. 

•  Hinds  t.  Overaeker,  66  Ind.  647,  32  Am.  Rep.  114 ;  Hare  t.  Mclntire,  82  Me. 
740, 10  Atl.  468 ;  Oabome  «.  Morgan.  130  Maaa.  102, 80  Am.  Rep.  487  (oyemiliac 
the  Albio  eaae.  wpra) ;  DurUn  a.  Kingston  Coal  Co..  171  Pla.  198, 88  AU.  387; 
hmm   N.  P.  a.  Co..  109  Minn.  886. 124  N.  W.  10. 


2U)        LAW  OF  THB  EMPLOTMBNT  OF  LABOR 


on  the  oominoii  Uw  obligati<m  to  so  oooduet  one's  self  as  not  to 
injure  another,  and  not  on  any  oontraet  relation. 

A  number  of  states  have  laws  providing  for  penal  proceedings 
against  employees  who  are  negligent  in  the  discharge  of  their 
duties  to  the  injury  of  third  persons.  The  common  law  provides 
for  such  liability  generally,  but  the  statutes  in  question  fix 
stated  penalties  for  certain  classes  of  offenses.^  These  relate 
most  frequently  to  employees  of  common  carriers,  bo'h  by  land 
and  water,  often  with  varying  penalties  for  negligence  and  gross 
n^digenoe,*  or  for  nec^igonce  endangering  life  and  f that  caus- 
ing actual  loss  of  life.*  Willfully  damaging  live  stock  or  other 
property,  or  unnecessarily  frightening  teams  is  also  made  a 
grour.d  for  pimishment.*  In  some  jurisdictions,  similar  laws 
exist  relating  to  operators  of  steam  boilers  or  other  machinery," 
or  even  to  persons  in  charge  of  animals.' 

The  question  of  requiring  bonds  from  employees  as  a  safe- 
guard ag^unst  the  results  of  their  negligence  is  taken  up  by  a  law 
ci  Massadkuaetts/  by  which  common  carriers  are  frarbiddra  to 
require  oi  their  employees  any  bond  or  other  security  against  the 
consequences  of  the  employee's  negligence  except  a  bond  to  ac- 
count for  money  ^r  other  property.  A  statute  of  New  Mexico 
looks  only  to  the  prohibition  of  the  requirement  of  bonds  by 
foreign  bonding  companies,  and  forbids  employers  to  charge  a  fee 

«  G».,  Pen.  Code,  sec.  115;  Kans.,  G.S.,  sees.  2007,  2008;  N.Y.  Con.  L.,  ch. 
40,  aeoa.  1052,  1891,  1892 ;  MaM.,  Acta  1906,  oh.  463,  Ft.  II,  seca.  243,  244 ;  N. 
Dak.,  B.C.,  aeoi.  SSai,  8833, 8998,  8894. 

»  Maaa.,  N.Y.,  N.  Dak. 

»  Ala.,  Code,  aeca.  7666,  7807,  7808,  7810 ;  Vt.,  P.8.,  aec.  4608. 
*  m.,  R.S.,  eh.  38,  aec.  191. 

•Aria.,  Pen.  Code,  aec.  308;  Cal.,  Pen.  Code,  Me.  888;  Mima..  R.L.,  aeca. 
4886, 4889 ;  N.Y.,  Con.  L..  ch.  40.  aec.  1893. 

*Mlaa..RJ[h,awi.4888.  >  A«to  IflfW,  A.  S14,  tee.  34. 


NTOLIGSNCB  OF  EMPLOTBiaS  201 


for  bonds  against  loss  from  the  acts  of  an  employee  against  such 
employee's  wages  unless  the  company  writing  the  guarantee 
maintains  an  office  in  the  tmiUxry.^ 

A  epeoi&e  form  of  ne^^noe  adverted  to  by  the  laws  of  a 
majority  of  the  United  States  is  the  intoxication  of  employees.* 
These  laws  relate  in  most  instances  to  the  employees  of  common 
carriers,  and  have  regard  to  the  welfare  and  safety  of  the  public 
as  well  as  of  fellow-servants.  A  law  prohibiting  intoxicated 
persons  to  enter  or  be  in  any  mme,  smelter,  machine  shop,  or 
sawmill'  doubtless  has  regard  less  directly  for  the  interests  of  the 
pnbHo.  In  a  number  of  states  an  employer  who  is  a  common 
cancier  is  subject  to  a  fine  if  he  hires  or  retains  m  his  service  per- 
sons  of  intemperate  habits.*  The  statute  may  also  declare  him 
liable  in  damages  by  reason  of  any  injury  caused  by  such  em- 
ployment,' which  is,  however  but  a  statement  of  the  common 
law  controlling  in  such  cases.  The  employee  may  also  be  de- 
clared liable  for  all  damages  incurred  or  produced  by  reason  of 
his  intoxication  during  employment  ^  or,  if  he  causes  injury 
to  person  or  property  by  reason  of  such  intoxication,  he  may  be 
fined  or  imprisoned.' 

SscnoN  102.  LiabUUy  cf  the  Employmr  to  Third  Permnu.  — 
The  doctrine  of  respondeat  superior,  i,e.,  tiiat  oue  is  zesiKmsible 
for  the  acts  of  his  agents,  operates  to  give  third  persons  a  ri^t 
of  action  against  the  employer  as  principal,  as  well  as  f*{ti«t 

>  C.L.,  sees.  2141,  2142. 

» Ari«..  Pen.  Code,  see.  366;  Conn.,  Acta  1907.  oh.  267;  Ind.,  Aeta  1907,  eh. 
272,  sec.  3 ;  Miss.,  Code,  sec.  1380. 
•  Wyo.,  AcU  1909,  eh.  32. 

«C«1..  Polit.  Code,  Moa.  2932,2933;  Mich.,  C.L.,  aec.  6284;  Ohio,  Oan. 
Code,  sec.  9005. 

•Vt..P.8...ec.4806.  •  Mich..  C.L.,  aec.  6285. 

'Vt.Pik,aee.4507:  Conn.  Acta  1907,  di.  367;  lad..  Aeta  1907,  eh.  273. 


202        LAW  OF  THE  EMPLOTMSNT  OF  LABOR 


the  nei^igait  aetor,  iHiere  an  injury  ki  reoeived  on  aooount  of 

the  negligence  of  an  en^ployee.^  To  give  ground  for  the  acticm 
against  the  employer  the  relation  of  employer  and  employee 
must  exist  at  tlio  time  of  the  act  giving  rise  to  the  claim,  though 
the  acts  of  one  rendering  service,  however  trivial,  or  for  however 
short  a  time,  and  even  if  without  being  requested  so  to  do  by 
the  person  served,  if  d<»e  with  his  knowledge,  or  with  his  as- 
sent, eqness  or  imidied,  will  make  him  liaUe  in  damages  to 
third  per;;(His  injured  by  such  acts.*  The  degree  of  liability  is,  of 
course,  only  such  as  the  employer  would  have  incurred  if  he  had 
done  vhe  act  himself ;  and  since  the  doctrine  is  an  exception  to 
the  broader  rule  that  every  one  is  answerable  for  his  own  acts, 
its  limits  are  in  fact  carefully  guarded,  being  in  general  restricted 
to  specifically  authorized  acts,'  or  those  done  in  line  of  duty  and 
for  the  boiefit  of  the  employer,  since  beyond  the  scope  of  his 
employment  the  employee  has  no  more  claim  upon  his  employer 
than  has  any  other  prascm,*  but  within  this  scope  the  emj^oyer 
is  liable  even  though  the  act  is  willful  and  wanton.* 

The  liability  is  the  consequence  of  the  negligent  character  of 
the  act  caiising  it,  and  it  is  no  defense  to  the  employer  that  he 
was  careful  in  choosing  his  employees,  or  had  no  notice  of  their 
incompetency/  If  the  act  was  done  in  the  course  of  employ- 
ment and  in  the  furtherance  of  the  employer's  business,  it  is  no 

» Farwdl  v.  Boston  W.  R.  Co.,  4  Mete.  49  (Maw.) ;  VTarax  ».  Cincinnati,  etc., 
R.  Co.,  72  Fed.  837 ;  Chesapeake  A  O.  R.  Co.  «.  Dixon,  179  U.S.  131,  21  Sup.  Ct. 
67.  «  HiU  V.  Morey,  26  Vt.  178 ;  Althorf  ».  Wolfe,  22  N.Y.  3S6. 

•  Lyaeh  v.  MetropoUtan  E.  R.  Co.,  90  N.Y.  77, 43  Am.  Rep.  141. 

•  Marier  t.  R.  Co.,  81  Minn.  851, 17  N.W.  952 ;  Phdan  «.  Stfles,  43  Con  .  426 ; 
Medlin  Milling  Co.  «.  Boutwell  (Tex.),  133  S.W.  1042. 

•  Jones  •.  Seaboard  Air  Line  R.  Co.,  160  N.C.  473,  64  S.E.  205 ;  Wallace  r. 
John  A.  Caaey  Co.,  116  N.Y.S.  394. 

•  Miaot  •.  SiMvcly.  173  Fed.  212  (C.CJL). 


NEGLIGENCE  OF  8MPL0TSBS  203 

defense  that  the  set  itself  was  specifically  prohibite4»  Thus 
where  a  salesman  loaded  a  gun  in  a  store  at  the  request  of  a 
customer,  though  protesting  that  it  was  against  his  employer's 
instructions,  a  resultant  injury  to  a  bystander  was  held  to  be 
chargeable  to  the  employer  because  of  the  purpose  of  the  act, 
which  was  in  no  sense  to  serve  the  negligent  employee,  but  only 
to  effect  a  sale  for  his  employer.*  The  same  rule  has  been  en- 
forced where  the  injurious  act  was  obviously  unauthorized,  as 
the  foreible  takmg  of  an  article  of  property  to  secure  the  pay- 
ment  <rf  fare,*  or  the  use  of  undue  violence  in  carrying  out  an 
order,*  such  acts  havmg  been  committed  in  the  exercise  of  the 
general  power  intrusted  to  the  employee  by  the  employer. 

An  employer  may  ratify  a  wrongful  act  of  his  em- 
ployee, as  by  accepting  benefits  procured  by  the  acts  of  which 
the  wrong  was  an  incident,  and  thus  become  liable  therefor  to 
the  injured  person.'  The  mere  fact  of  the  retention  of  an  em- 
ployee after  the  commission  of  the  wrongful  act  does  not  amount 
to  a  ratification  thereof,*  though  it  is  said  that  to  retain  and 
promote  an  employee  with  a  knowledge  of  his  tortious  acts  is 
some  evidence  of  such  ratification.'  It  has  been  held  that, 
where  the  injury  is  caused  by  acts  in  the  nature  of  slander  or 

'  it  is  not  sufficient  to  show  that  the  servant  was  at  the  tune 

'     atera  Real  Estate  Trustees  v.  Hughes,  172  Fed.  206  (C.CjL)  ;  Fhflaclel- 

1.  R.  Co. ».  Derby,  14  How.  (56  U.S.)  468. 
Garretien  ».  Duenckel,  60  Mo.  104, 11  Am.  Rep.  405. 
•  Ramaden  v.  R.  Co.,  104  Mass.  117,  6  Am.  Rep.  120. 

« JeCfenoavflle  R.  Co.  t.  Rogers,  38  Ind.  116, 10  Am.  Rep.  103;  Steamboat 
Coj,.  Brockett.  121  887. 7  Sup.  Ct.  1089;  Tfllar  Reyiwld.  (Ark.),  181 
8.W.  969. 

•Sfaion     Bloomingdale,  81  N.Y.  Supp.  499,  39  Misc.  847;  Dempsey  v 
Caiambers,  154  Mass.  330,  28  N.E.  279. 

'International,  etc..  R.  Co.  v.  McDonald,  75  Texas  41, 12  S  W  860 
'Bant.Clii<»io,.to.,R.Co.,42Wfa.664,34Am.Rep.437. 


204        LAW  OF  THS  BMPLOTMBNT  OF  LABOR 


in  the  aervice  of  his  employer  or  acting  within  the  scope  of  his 
employment ;  but  direct  authority  to  speak  the  acti(mable 
words,  or  their  subsequent  apptovti  and  ratification  must  also 

be  shown.' 

Both  master  and  servant  may  be  held  responsible  for  injuries, 
either  to  strangers '  or  to  other  employees ;  *  and  a  nonresident 
corporation  cannot  procure  a  separation  of  a  joint  action  so  as 
to  avail  itself  of  the  right  of  removal  of  the  case  from  a  state  to  a 
federal  court.*    The  law  of  one  state  directs  that  in  actions  for 
damages  against  an  employer,  when  the  mjury  is  the  result  of 
the  negligence  of  a  co-employee  of  the  person  injured,  such 
negligent  employee  shall  be  named  in  the  verdict.*    U  the  li- 
ability of  the  employer  is  based  solely  on  the  rule  of  respondeat 
superior,  and  not  any  participation  by  him  in  the  negligent  or 
wrongful  act,  it  has  been  held  that  the  employer's  liability  in 
such  a  case  is  separate  and  distinct  from  that  of  the  employee, 
and  not  joint,  and  that  therefore  a  nonresident  employer's  case 
might  be  transferred  to  a  federal  court  ;  ^  but  the  contrary 
rule  is  fixed  as  the  practice  of  the  Supreme  Court.'  Where  an 
employer  has  been  subjected  to  the  payment  of  damages  on 
account  of  the  wrongful  actpf  his  employee,  in  a  case  in  which  he 
is  not  jointly  liable,  he  may  recover  the  sum  paid  in  an  action 
against  the  employee,*  though  it  must  appear  clearly  that  the 
latter  was  guilty  of  negligence,  to  support  such  a  recovery." 

>  Duquesne  Distributing  Co.  t.  Greenbaum,  135  Ky.  182,  121  S.W.  1026. 
» Hewett ».  Swift,  85  Mass.  420.  »  Fmi  t.  Whipple,  11  Hua.  886. 

«Cheaapeake  &  O.  R.  Co.  v.  Dixon,  179  U.S.  131.  21  Sup.  Ct.  67;  Alabama 
0. 8.  R.  Co. ».  Thompson,  200  U.S.  206,  26  Sup.  Ct.  161. 

•  Minn.,  R.L,,  sec.  4179.  •  Waraz  t.  Cincinnati,  etc.,  R.  Co.,  72  Fed.  637. 
» Chesapeake  &  O.  R.  Co.  ».  Dixon,  •upni;  AUbama  O.  S.  R.  Co.  ».  Thomp- 

■oa.  rapra.  •  Smith  ».  Foran,  43  Conn.  344. 21  Am.  Rep.  647. 

*  Bzaanaa  t.  Hod,  16  La.  Ann.  308. 


1 


CHAPTER  X 


Section  103.  Liability  of  Employers  for  Taxes  of  Employees. 
-An  incident  of  the  relation  of  employer  and  employee  that  is 
purdy  Btatutory  is  a  provision  of  the  laws  of  a  few  states  that 
makes  employen  liable  for  taxes  levied  on  their  employees  > 
usuaUy  poU  and  road  tawe.  By  these  rtatutes  the  employer 

may  be  required  to  pay  such  taxes  and  recoup  hiinself  from  the 
wages  owmg  to  or  earned  by  them.   The  IWylvania  statute  « 
refer?     alien  employees  only,  but  coven  aU  taxes  payable  by 
them       lling  short  of  such  requiremente,  but  looking  toward 
the  same  end  are  laws  directing  employers  to  furnish  the  names 
of  employees  to  assessors,  road  overseers,  etc.»   Such  laws  go 
to  quite  an  extreme  m  the  matter  of  charging  employers  with  the 
duties  devolving  on  the  public  officers  of  the  state,  and  are  of  at 
least  doubtful  vaUdity,  burdening  employers  with  the  discharge 
of  a  quasi  public  function  from  which  other  persons  in  like  situa- 
tion  in  every  respect  except  that  they  are  not  employers  are 
free ;  *  nor  does  the  duty  faU  equaUy  on  employers,  especially 

'  CjL.  Po«t.  C^e  2671;  Ga..  Polit.  Code.  sec.  549;  Idaho.  R.C..  «c. 
808  La  Acta  1902.  No.  213;  N.  Mex..  Acta  1907.  eh.  96;  Warf,..  Acta  19^. 
ch.  119 ;  Wyo..  Acts  1905,  oh.  03.  .  "-n.,  acm  IWH, 

•Acta  1897,  No.  108. 
Rev^sJ;.'SSr"'^'  Code- -434;  Colo..  A.C..  «ec.  3957;  N.C. 

*  County  Com'rs  ».  Aapen  Minia*  Co..  3  Colo.  App.  223, 82  Pfco.  717. 

205 


206       LAW  OF  THS  BMPLOTMINT  OF  LABOB 


in  the  case  of  the  Ftonnqrhrania  statute,  and  it  Menu  probable 
that  the  law  of  that  state  would  fall  undor  the  aame  iwwAwnm- 
tion  as  did  the  statute  taxing  tmpkjiytn  ot  alien  labor.  (See 

sec.  56.) 

In  case  of  a  judgment  for  taxes  rendered  against  a  delinquent 
worlcman,  the  obligation  devolving  on  the  employer  is  in  the 
nature  of  a  garnishment,  and  he  is  liable  for  the  payment  of 
such  taxes  if  and  only  if  he  is  indebted  to  the  employee  at  the 
time  the  notioe  is  sorved,  or  beoomes  indebted  thraeafter.* 

SicnoN  lOi.  Profit  Sharing  by  Bmphyee$.  — Two  states 
have  laws  containing  special  provi^ms  authorising  ompora- 
tions  to  arrange  for  admitting  employees  to  an  interest  in  the 
profits  of  the  business.  In  one  of  these '  the  method  is  simply 
a  grant  of  power  to  the  board  of  directors  to  distribute  to  the 
employees  such  portion  of  the  profits  as  it  may  deem  just  and 
proper ;  in  the  other  instance,'  provision  is  made  for  the  issue 
of  special  stock  to  employees,  such  stock  to  be  held  only  by 
them.  The  value  of  such  stock  is  Umited,  and  the  proporti(m 
to  the  total  value  of  the  capital  resected;  the  payment  of 
divi<  nds  thereon  is  also  regulated.  These  laws  are  <tf  but  little 
interest,  since  they  are  not  essential  to  the  practices  mdicated, 
which  are  much  more  common  than  is  the  legislation. 

Section  105.  Pensions  for  Employees.  —  The  law  of  Pennsyl- 
vania regulating  corporations  contains  a  section  *  which  declares 
that  corporations  for  profit  may  grant  allowances  or  pensions 
to  employees  yiho  have  become  old  or  infirm  during  service, 
like  the  laws  mentioned  in  the  foregonig  section,  this  law  is  of 

>  Kootenai  County  «.  Hope  Lumber  Co.,  13  Idaho  262, 80  Pac.  1064. 
*  Conn.,  as.,  aeo.  3342. 

•MaaB..BX..ch.  110.  wok  87-89.  «  B.  P.  Dig.,  p.  424.  mo.  106. 


8UNDRT  8TATDTM  207 

BO  pwtiottlar  value,  the  praetioe  being  comparatively  wide- 
tpnad  and  entiiely  independent  ol  itatutory  regulations. 

Section  106.  CoSperaim  A$9oeialiom. A  nmiber  ot 
have  special  laws  providing  for  the  fonnstkm  of  ooOperative 
associations  for  profit.*  So  far  as  productive  associatioiu  are 
concerned,  it  is  the  intention  of  these  laws  to  provide  for  the 
codperation  in  industrial  undertakings  of  groups  of  persons  as- 
soeiated  in  corporate  form  to  manage  a  business  m  which  the 
labor  BhaU  be  furnished  Urgely  or  exclusively  by  the  members 
thenttelves.  Provision  b  made  against  the  concentration  of 
stock  or  of  power,  either  by  declaring  that  members  shaU  hold 
but  one  share  each  of  the  stock,  or  by  limiting  the  value  of  the 
stock  one  member  may  hold ;  voting  power  is  also  restricted. 

Section  107.  W<yrkTnen'a  TraiVw. — One  state  has  a  statute  re- 
quiring every  railroad  having  a  terminus  in  its  principal  city  to 
operate  not  less  than  two  workingmen's  traios  each  way  daily.' 
T!ie  hours  of  arrival  and  departure  and  the  rates  of  fare  are 
fixed  by  the  statute.  The  number  of  trains  may  be  increased 
by  the  board  of  railroad  commissioners  on  petition. 

The  object  of  securing  reduced  rates  of  transportation  for 
workmen  at  certain  hours  of  the  day  may  also  be  gained  by 
provisions  in  the  articles  of  incorporation  of  street  railways,  or 
bv  city  ordinances;  and  where  the  ordinance  requires  such 
service  within  the  city  limits,  the  extension  of  the  bounds  of  the 
city  wiU  operate  to  extend  the  appUcation  of  the  ordinance, 
wbsn  the  same  charter  is  effective.*  ' 

>Conn.  G  S..  .ecs.  3992-4001;  JU..  R.S..  ch.  32.  sees.  103-127;  Kan... 
OS.,  aec  1464-14M:  Mm...  ILL.,  ch.  110.  mc  7. 60. 70;  NJ..  OA.  ppXi 

*MaM..Aetol    J.  eh.  463,  Pt.  II.  kc.  188. 

•  Ftople  ..  Detroit  Uaitad  RaflwiQr.  If )  Midi.  460, 126  N. W.  700. 


206       hkW  OF  Thm  SIfPLOTlfINT  OF  LABOR 


Etecnoir  106.  XfnpIoyiiMitf  Qffien.  —  AvuOm  having  for 
their  object  the  plMing  of  appUoMito  for  employment  or  the 
furntehfaig  of  employeet  to  pertons  leeidiig  workmen  are  regu- 
lated by  statute  in  many  states,  the  large  amount  of  fraud  and 
of  abuse  of  confidence  being  held  to  justify  such  action.  The 
state  itself  has  undertaken  to  render  this  service  in  a  number  of 
jurisdictions,  appropriating  sums  of  money  for  the  maintenance 
of  bureaus  of  information  and  registration  for  both  workmen 
and  employers.'  These  offices  are  usually  under  the  direction 
and  manatement  of  the  state  labor  comniissi<»ier,  and  are 
recognised  as  a  proper  form  of  state  activity.  The  service  is 
without  charge  to  either  party,  and  must  be  uniformly  rendered 
without  discrimination  between  persons  engaged  in  or  seeking 
legitimate  employment.   Thus  a  law  forbidding  the  furnishing 
of  lists  of  applicants  for  employment  to  employers  whose  work- 
men are  on  strike  *  was  declared  imconstitutional  as  unlawfully 
discriminating  between  employers  having  employees  who  had 
gone  on  strike,  possibly  without  justifiable  cause,  and  other 
employers ;  dso  between  workmen  implying  for  situations  with 
anpk>yars  whose  men  are  not  (m  strike  and  workmen  whose 
i^plicati(»8  were  not  so  restricted.*   In  other  words,  it  was  an 
attempt  to  enact  a  law  not  affording  the  equal  protection  to  the 
citiaois  <^  the  state  timt  is  required  by  the  fourteenth  amend- 
ment. 

The  regulations  affecting  privately  managed  employment 
agencies  may  require  merely  a  registry  of  the  agency  and  the 

>  Conn.,  O.S.,  mcb.  4608,  4609,  Acts  19C3,  ch.  oJ» ;  III.,  R.8.,  all.  48,  mm,  63 
to  60 :  Mich.,  AcU  1907,  No.  281 ;  Ohio,  AcU  1904,  p.  101.  ate 

*  III.,  Act8  1899,  p.  268. 

*  Mattbem  «.  Foople.  202  lU.  389, 87  N.E.  38. 


BUNDRY  STATUTES 


ptannaitol  a  tax  or  Uoanw  f ee ;  *  or  tbey  may  oootain  the  added 

requirement  of  good  character  of  the  appUeaat  for  lioenae;  >  or 

of  a  bond  conditioned  that  the  applicant  shall  conduct  his  agenoj 
properly  and  pay  damages  resulting  from  misconduct.*  They 
may,  on  the  other  hand,  prescribe  minutely  the  conduct  of  the 
buainen,4  as  by  fixing  or  limiting  the  amount  of  the  fee  to  be 
charged,  or  prohibiting  the  making  of  any  charge  in  advance  of 
th«  furaUiinc  of  infomuitkm  or  aarirtaaoe  to  the  applicant,  or 
forbidding  tbe  divkkm  of  the  fen  with  employer.  Fatluie  to 
secure  or  retain  a  position  by  the  airiitanee  of  the  agency  may 
be  made  grounds  for  a  demand  for  a  return  of  a  part  or  all  (rf 
the  fee  paid.  The  sending  of  applicants  for  labor  to  places  of 
an  immoral  character  is  frequently  prohibited  in  laws  of  this 
class,  and  the  location  of  the  office  of  the  agent  in  or  in  com- 
munication  with  any  place  in  which  intoxicants  are  sold,  or  in 
enmeotitm  with  any  restaurant  or  lodging  house  may  be  for- 
bidden. The  agent  may  be  required  to  assure  himself  beyond 
a  reasonable  doubt  as  to  the  correctness  of  his  statemoits,  and 
the  making  of  false  statements  be  punished  ac  %  misdemeanor. 

Laws  of  this  nature  are  clearly  restrictive  of  the  citisen's 
right  to  carry  on  a  lawful  business,  and  as  suih  their  constitu- 
tionality has  been  challenged.  They  have  been  upheld  by  the 
courts,  however,  on  the  ground  that  they  are  within  the  police 
power  of  the  state,  exeroised  in  behalf  of  the  general  welfare, 
and  specifically  to  prevent  fraud  and  immorality.   "The  leg- 

'  Tenn.,  Acta  1907,  oh.  541,  leo.  4;  Ky.,  Act«  1904,  oh.  33 ;  Nov.,  C.L.,  mo. 

•  V«.,  Code  App.,  Mos.  128,  129. 
» La.,  Acta  1894,  No.  68 ;  Idaho,  Code.  sees.  658,  659. 

« D.C.  (U.S.),  34  Stat.  304,  848,  36  SUt.  641 ;  Cal.,  Sima'  Penal  Code.  p.  682 ; 
III.,  R.S.,  ch.  48,  aeoa.  61,  62;  N.Y..  Con.  L.,  eh.  20,  aeoa.  170-189;  P».,  Acta 
1907,No.90:  N.J.Aetal907,eh.23O;  (»ik>, 0«i. Code, aaea. ^6-896. 


210        LAW  OF  THE  EMPLOYMENT  OF  LABOR 

idature  has  the  right  to  take  notice  of  the  fact  that  such  agencies 
are  places  where  emigrants  and  ignorant  people  frequently 
resort  to  obtain  employment  and  to  procure  information,"  * 
and  the  evils  of  imposition  and  extortion  that  are  known  to  have 
been  practiced  by  private  agencies  warrant  their  regulation  by 
statute.*  A  provision  limiting  the  amount  of  charges  was  held 
unconstitutional  in  a  California  case,'  the  language  used  by  the 
court  being  such  as  to  suggest  its  disapproval  of  the  entire  law. 
The  better  opinion  is,  however,  clearly  m  their  favor. 

A  few  states  require  emigrant  agents,  t.e.,  agents  undertaking 
to  procure  employees  for  labor  outside  the  state  of  residence,  to 
pay  a  tax  for  the  privilege  of  transacting  such  business,  not  so 
much,  apparently,  by  way  of  regulation  as  for  the  sake  of  dis- 
couraging it  entirely.  Such  at  least  would  seem  to  be  a  natural 
inference  from  a  tax  rate  of  five  hundred  dollars  for  each  county 
in  which  the  business  is  carried  on,*  or  even  of  one  hundred 
dollars;*  while  a  rate  of  one  thousand  dollars  per  county* 
could  hardly  receive  Miy  other  interpretation.  No  lionise  is 
necessary  where  the  Wring  is  done  by  the  employer  himself  or 
by  his  agent  solely  for  hun.'  The  validity  of  this  class  of 
laws,  as  tanng  laws,  was  upheld  in  a  case  arising  under  the 
tax  l8^  of  Georgia  of  1898,  which  fixed  the  rate  at  five  hundred 
dollars  for  each  county  in  which  the  agent  wished  to  operate. 
The  contentions  that  the  act  restricted  the  right  of  a  citizen  to 

>  People  a  rd  Amutrong  t.  Warden,  183  N.Y.  223.  76  N.E.  11. 

•Price  t.  People,  IM  lU.  114. 81  N.E.  844;  SUte  ».  Napier,  63  B.C.  60, 41 
S.E.  13. 

«  Ex  parU  Dickey,  144  Cal.  234,  77  Pac.  924. 
«  FU.,  G.S.,  MC.  476 ;  Oa..  AcU  1907,  p.  25. 

•  N.C.,  Revkal,  aeo.  6108.  •  S.C..  Acta  190T,  ch.  260. 

>  Watte  e.  Commonwealth.  106  V«.  8S1,  M  S.E.  m 


SUNDRY  STATUTES 


211 


move  from  one  state  to  another,  impaired  the  natural  right 
to  labor,  and  was  class  legislation  without  a  reaaonable  huas, 
were  all  disallowed  by  the  Sur  "riic  Coui-t;*  nor  would  this 
court  impute  prohibitive  inter  v  t(,  the  law  The  courts  of 
states  having  laws  of  this  cla  s  ollow  thi?  decision,*  which 
itself  was  in  affirmation  of  a  case  decidea  u;,  the  supreme  court 
of  Georgia.* 

In  this  connection  may  be  mentioned  statutes  of  a  few  states 
forbidding  superintendents,  foremen,  and  others  who  employ 
and  discharge  workmen,  to  ask  for  or  receive  fees  or  gratuities 
for  giving  employment  or  continuing  employees  in  service.* 

Section  109.  Bureaus  of  La6or.— Offices  exist  in  most  of  the 
United  States  as  a  part  of  the  administrative  force  of  the  state, 
whose  duty  it  is  to  collect  industrial  statistics,  investigate 
conditions  of  employment,  inspect  factories  and  other  work 
places,  administer  and  enforce  the  laws  enacted  for  the  protec- 
tion of  labor,  and  seek  to  improve  the  condition  of  manual 
laborers,  in  general.  The  heads  of  such  bureaus  or  offices  are 
usually  known  as  commissioners,  and  are  sometimes  appointed 
by  the  governor  and  sometimes  elected  by  popular  vote.  The 
work  of  factory  inspection,  mine  inspection,  the  enforcement  of 
child  and  woman  labor  laws,  the  mediation  and  conciliation  of 
labor  disputes,  and  the  conduct  of  free  public  employment  offices 
are  acme  of  the  adnunistrative  duties  with  which  the  com- 
miasioneiB  of  labor  may  be  charged  in  the  various  states.   In  the 

« Willunu  ».  Feaw,  179  U.S.  270, 21  Sup.  Ct.  128. 

» SUto  t.  Nftpier.  tupn;  State ».  Robenon,  138  N.C.  887. 48  S.E.  695. 

»  Williama  ».  Fears,  1 10  Ga.  684,  36  S.E.  699. 

*  Conn..  G.S..  sec.  4698 ;  n«..  G.S.,  see.  3743  (employment  of  loncihoremen) ; 
Mont..  Acts  1907.  ch.  53 ;  Ner.,  Aote  190B,  eh.  26 ;  P*..  B.  Dig.,  p.  457,  mo.  88  : 
Utah.  Act*  19W,  oh.  82. 


212        LAW  OF  THE  EMPLOYMENT  OF  LABOR 


eanying  out  ci  thk  work  thqr  may  be  reqidnd  to  proaeeute 
emidoyen  and  ^pxapneUm  who  disregard  the  itatutea  m  the 
orders  of  the  cramdasioners  and  their  inspecting  force;  they 
may  also  be  required  to  defend  in  actions  brought  by  persons 
who  feel  themselves  aggrieved  by  such  statutes  or  orders.  It  is 
only  in  this  indirect  connection  therefore  that  bureaus  of  labor 
call  for  mention  here,  the  laws  which  they  enforce  having  been 
already  noted  under  their  respective  heads. 

The  National  Bureau  oi  Labw  is  charged  with  the  achninis- 
tr»ti<m  ol  no  laws,  its  functions  bdng  investigatory  <mly;  the 
fdnglft  earo^tion  to  thte  rule  Ues  in  the  faet  that  the  administra- 
tion of  the  federal  compensation  act  (see  sec.  99)  is  delegated 
in  large  part  to  this  bureau  by  the  head  of  the  Department  of 
Ck>mmerce  and  Labor,  to  whom  the  statute  is  by  its  terms  com- 
mitted for  enforcement.  The  Commissioner  of  Labor  also  acts 
with  a  member  of  the  Interstate  Commerce  Commission  or  of 
the  Court  of  Commerce  designated  the  Braeident,  in  dtacUt  to 
mediate  in  labcnr  diqwites  affecting  inteirtate  cwnmon  caimn. 
(See  see.  128.) 


CHAF*  m  XI 


TBADB  AND  I.ABOB  A880GU<nOIIB 

Section  110.  Nature.  — Associations  of  workingmen,  whether 
members  of  single  trades  or  of  wider  industrial  groups,  are 
the  result  of  a  purpose  to  procure  for  their  members  benefits 
that  are  concaved  to  be  better  obtainable  by  concerted  action 
than  by  individuals  acting  rin^y.  Such  awodations  opiate 
by  way  of  agreement,  each  member  giving  over  in  part  his  own 
freedom  of  action  to  the  will  and  choice  of  the  organisation  in 
exchange  for  the  benefits  and  protection  proposed  to  be  derived 
from  his  membership  therein.  To  the  extent  *  the  scope  of  such 
agreements  they  operate  as  a  restraint  on  the  free  action  of  the 
individual  in  disposing  of  his  own  labor,  and  in  a  resultant  de- 
gree, on  tiie  free  course  of  employment. 

Efforts  to  better  the  conditions  of  employment,  including  the 
subjects  of  wages,  hours  of  labor,  shop  rules,  and  the  personnel 
of  the  working  force,  are  uniformly  held  to  be  lawful  by  the 
courts  of  this  country,  and  the  fact  of  c(Hnbination  in  nowise 
aflfects  the  fact  of  lawfulness,  although  the  power  of  the  asso- 
ciated members  is  far  greater  than  the  mere  sum  of  the  mdivi- 
dual  forces  comprising  the  association,  and  though  there  is  a 
measare  of  restraint  on  trade.'  With  the  exception  of  a  very 
few  eviy  and  entirely  repudiated  eases,  this  has  always  been  the 

'IfMtor  Stevsdona'  Am'n.  t.  WiUi.  2  D«ly  1  (N.Y  );  Carew  ».  Ruther- 
ford,  106  Man.  1,  8  Am.  Rep.  287 ;  Union  P.  R.  Co.  e.  Ruef.  120  Fed.  102 ;  N*. 
tional  Protective  Asa's.  «.  Cuminm»i,  170  N.Y.  315.  63  N.E.  369 ;  Arthur  ». 
OakM,  6S  rW.  taO,  11  CCJL  am ;  RtvUat ».  U.8.,  171 UA  «78, 19  Sup.  Ct.  40. 

213 


214        LAW  OF  THE  EMPLOYMENT  OF  LABOR 


rule  in  the  United  States,  while  in  many  states,  and  by  federal 
enactment,  the  lawfulness  oS  labor  associations  is  declared  by 
statute ;  *  special  provisions  may  also  be  made  for  their  incor- 
poration.' 

This  broad  statement  as  to  the  legality  of  associations  and 
agreements  must  be  qualified  as  soon  as  the  conduct  of  third 
persons  is  made  the  subject  of  regulation  or  attempted  regu- 
lation,' since  one  man's  rights  end  where  mother's  heffn,  though 
at  what  point  this  line  is  to  be  drawn  has  been  the  subject  of 
numerous  diveii^t  opinions;*  nor  can  a  man  lawfully  bind 
himself  irrevocably  to  a  surrender  of  his  own  choice  and  will. 
In  other  words,  the  voluntary  character  of  the  association  must 
be  maintained,  and  excessive  fines  or  forfeitures  to  compel  the 
observance  of  membership  agreements  cannot  be  enforced  at 
law,  even  against  the  party  making  them.*  The  preservation  of 

>CaI.,  Acts  1903.  ch.  289;  Colo.,  A.S.,  aec.  1265;  N.Y.,  Con.  L„  ch.  40, 
MC.  682 ;  Pa.,  B.  P.  Dig.,  p.  484,  sees.  72,  73. 

« Iowa.  Code,  sees.  1642, 1613 ;  La.,  R.L.,  see.  677,  Acts  1890,  No.  50 ;  Mass., 
R.L.,  ch.  126,  sees,  ia-16 ;  U.S.,  30  Stat.  424,  Comp.  St.,  p.  3204. 

•  U.S.  V.  Debs,  63  Fed.  436. 64  Fed.  724,  65  Fed.  210 ;  In  re  Debs,  158  U.S.  664, 
15  Sup.  Ct.  900;  Loowe  ».  Lawlor,  208  U.S.  274,  28  Sup.  Ct.  301 ;  Pickett  ». 
Walah,  192  Maaa.  672,  78  N.E.  763. 

•  The  general  principle  seems  to  be  well  expressed  in  a  caae  (Curran  ».  Galen, 
162  N.Y.  33,  46  N.E.  297),  in  which  a  nonunion  employee  » ts  suing  to  recover 
damages  for  his  discharge  made  in  pursuance  of  an  agreement  that  only  union 
men  should  be  employed.  In  this  case  the  court  said :  "  Public  policy  and  the 
interests  of  society  favor  the  utmost  freedom  in  the  eitisen  to  pursue  his  lawful 
trade  or  calling,  and  if  the  purpose  of  an  organization  or  combination  of  working- 
men  be  to  hamper  or  restrict  that  freedom,  and,  through  contracts  or  arrange- 
ments with  emidoym.  to  coeroe  other  worUngmea  to  bee(»M  monben  of  the 
organization  and  to  some  under  its  rules  and  conditions,  under  the  penalty  of 
the  loss  of  their  positions  and  of  deprivation  of  employn.ent,  then  that  purpose 
•aems  deariy  unlawful,  and  mOUates  agBinat  tb*  vbit  of  our  fovsrainatit  mad 
the  nature  of  our  institutions." 

•  Martell  «.  White,  185  Mass.  266,  69  N.E.  1086 ;  Boutwdl  «.  Man.  71  Vt.  1, 
42  AU.  607 ;  WUlcut  A  Sons  Co.  ».  Bricklayers'  Ben.  P.U.,  900  Ifaa.  110, 86 
N.E.  897 ;  Oat«>w  t.  Buening,  108  Wis.  1, 81  N.W.  1003. 


TAADE  AND  LABOR  ASSOCIATIONS  215 


a  reasonable  degree  of  liberty  of  action  on  the  part  of  the  mem- 
bers of  organizations,  other  workmen,  employers,  and  the  public 
generally  would  appear  to  be  the  fundamental  obligation  which 
combinations  of  the  sort  under  consideration  should  be  required 
to  meet.'    The  fact  is  not  overlooked  in  this  connection  that 

>  In  the  case  of  Martell  «.  White,  cited  above,  a  voluntary  association  of  gran- 
He  manufacturers  had  agreed  to  limit  their  biuineM  transactions  to  members  of 
the  association,  under  a  penalty  not  to  «Eceed  five  hundred  dollars.  Martell, 
a  quarryman,  who  was  not  a  member  of  the  association,  complained  of  loss  of 
trade  by  reason  of  the  agreement.  Members  of  the  association  had  in  fact 
dealt  with  him  until  the  enforcement  of  penalties  caused  them  to  cease.  The  trial 
court  ruled  that  Martell  had  no  ground  of  action,  but  on  appeal  it  was  held  that 
though  the  end  sought,  t.e.,  the  advancement  of  the  business  interests  of  the 
monbers,  was  not  illegal,  the  fact  that  there  was  arbitrary  and  artificial  inter- 
ference with  the  choice  and  acts  of  the  members  of  the  association,  afforded  suffi- 
cient grounds  to  support  an  action.  The  coercive  system  of  fines,  enforced  by  s 
tribunal  not  legally  constituted,  even  though  assented  to  in  the  original  agree- 
ment, was  held  to  result  in  illegal  restraint,  used  as  it  was  to  enforce  a  right,  not 
absdute,  but  conditional,  and  inconsistent  with  the  conditions  upon  which  the 
right  rests.  The  case  of  Boutwell  v.  Marr  was  cited  in  this  case,  the  circum- 
stances having  been  quite  similar.  In  the  Boutwell  case  the  court  said :  "  The 
law  cannot  be  comttelled,  by  any  initial  agreement  of  an  associate  member,  to 
treat  him  as  one  having  no  choice  but  that  of  the  majority,  nor  as  a  willing  par- 
ticipant in  whatever  action  may  be  taken.  The  voluntary  acceptance  of  by- 
laws providing  for  the  imposition  of  coercive  fines  does  not  make  them  legal  and 
collectible,  and  the  standing  threat  of  their  imposition  may  properiy  be  classed 
witii  the  ordinary  thrsat  of  suits  upon  groundless  daims." 

While  the  above  cases  are  not  those  of  combinations  of  workingmen,  the  prin- 
ciples of  the  Martell  case  were  directly  applied  to  a  labor  organisation  seeking 
to  enforce  a  strike  order  by  fines  on  members  imwHUns  to  leave  their  emidoy- 
ment  (Willcutt  ic  Sons  Co.  «.  Bricklayers,  etc.,  tupra) ;  to  a  case  in  which  a  labor 
union  sought  to  enforce  a  fine  against  an  employer  of  some  of  its  members  for  not 
giving  all  his  work  to  union  workmen  (Carew  r.  Rutherford,  106  Mass.  1, 8  Am. 
Rep.  287 :  the  fine  was  paid,  but  the  court  allowed  Carew  to  recover  it,  as  no 
one  has  the  right,  "eithur  alone  or  in  combination  with  others  to  disturb  or 
annoy  another  either  directiy  or  indirectly,  in  his  lawful  business  or  occupation, 
or  to  threaten  him  with  annoyance  or  injury,  for  the  sake  of  compelling  him  to 
buy  his  peaee."  See  also  March  t.  Brieklasrwa'  and  Plasterers'  Union,  78  Conn. 
7, 68  Atl.391) ;  mod  to  •  oho  inwUdi  a  memtiar  ww  onfamd  to  pay  a  fine  for 


216        LAW  OF  THE  EMPLOTMENT  OF  LABOR 


ii^ete  is  "an  undoubted,  and,  from  the  practical  standpdnt, 
probably  unassailable  detenninati<»i  of  the  state  to  diminuh 

the  natural  inequality  of  capital  and  labor,  by  prohibiting  com- 
binations of  capital  and  permitting  combinations  of  labor."  *■ 
But  legislative  expression  of  this  intent  does  not  authorize  in- 
terference with  the  lawful  business  of  employers,*  or  with  the 
conduct  of  workmen  who  may  not  choose  to  become  or  remain 
members  of  labor  <»rganiaationB.*  The  right  of  action  for  dam- 
ages tot  mterference  witii  buunees  or  onployment  k  therefore 
not  precluded  by  statutes  exptmity  legalising  labor  combina- 
tions;* and  a  law  attempting  to  absolve  from  liability  of  this 
sort  would  doubtless  be  declared  unconstitutional.  So  that 
though  labor  agreements  are  in  some  respects  legalized  in  a 
sense  in  which  capitalistic  agreements  are  not,  and  assuredly  in 
a  sense  quite  in  contrast  to  the  status  of  such  agreements  under 
the  prohibitive  statutes  of  Great  Britun  in  force  at  the  begin- 

Klleged  vidations  of  union  rules  (Bremutn  •.  Hatters.  73  N.J.L.  720,  6S  Atl. 
165 :  Brennan  was  held  not  to  be  obliged  to  pay  the  fine  wt  ■ufamit  to  the  otder 
of  tiie  union  to  give  up  his  place  for  a  year,  since  an  original  agreement  to  submit 
to  such  discipline,  even  if  made,  would  be  ooatrary  to  public  policy  and  therefore 
void.  See  also  Schneider  v.  Local  Unim  No.  80. 118  L*.  270. 40  So.  700 ;  Mon  t. 
Bennett.  140  lU.  69,  29  N.E.  888). 

<  Tiadsauui,  State  and  Fedmd  Cimtrol  of  Persona  and  Property,  p.  428 ; 
ptr  contra,  Eddy  on  Combinations,  sees.  894-897. 

•Old  Dominion  S.S.  Ck>.  t.  McKenna,  30  Fed.  48;  Goldberg  t.  Stablemen's 
Union,  149  Cal.  429, 86  Pao.  808;  Pimee  t.  Same,  IM  Cal.  70. 103  Pfee.  824; 
Farmms'  L.  A  T.  Co. «.  N.  P.  R.  Co.,  60  Fed.  803 ;  Arthurs.  Oakee,  63  Fad.  810; 
Loewe  t.  Lawlor,  208  U.S.  274,  28  Sup.  Ct.  301. 

•  Curran  v.  Galen.  162  N.Y.  33,  46  N.E.  297 ;  People  ».  Smith,  8  N.Y.  Cr.  800; 
Peoide  •.  Walsh.  6  N.Y.  Cr.  202;  Cumberland  Glass  Mfg.  Co.  s.  Glass  Bottle 
Blowers'  Ass'n,  80  N.J.  Eq.  40, 48  Atl.  808;  Flaeeus  •.  Smith.  100  Pm.  128,  48 
Atl.  804 ;  Lucke  t.  Clothing  Cutters,  77  Md.  396.  26  Atl.  505. 

« Frank  •.  Herold,  63  N.J.  Eq.  443,  62  AU.  152;  Curran  •.  Galen,  SMpra; 
Berry  t.  Dtmovan.  188  Bfass.  888, 74  N.B.  803;  Purvis  v.  U^ted  Brotheritood, 
814  Fa.  St.  848, 88  Atl.  688. 


TRADE  AND  LABOR  ASSOCIATIONS  217 


ning  of  the  last  century,  they  are  yet  neceaearily  eontroUed  by 
tiw  same  general  principles  of  law  as  are  associations  ci  ci4>ital,* 
and  more  particularly  associations  of  employers.'  It  is  there- 
fore not  permissible,  in  a  study  of  trade  or  labor  associations, 
to  overlook  any  point  as  to  the  form,  nature,  purpose,  or  methods 
of  the  organization  that  would  be  pertinent  in  examining  other 
combinations,  though  the  effect  of  special  statutes  and  of  court 
decisions  wiU  necessarily  receive  attention. 

Section  111.  Staiua.  —  The  powers  ot  an  incorporated  union 
are  such  as  are  givea  to  it  by  its  chwtar,  and  any  member,  as  a 
party  in  mterest  to  the  acts  and  undertakings  of  the  society, 
may  call  upon  the  courts  to  compel  the  observance  by  it  of  its 
charter  provisions.'  It  may  be  enjoined,*  and  adjudged  guilty 
of  contempt  for  the  violation  of  an  injunction,  and  fined  there- 
for, as  any  other  corporation.'  Such  a  body  cannot,  however, 
procure  an  injunction  agunst  a  rival  organisation  to  prevent  its 
own  disnQ>tion  by  persuasion  or  other  means  calculated  to 
cause  its  members  to  abandon  the  conqilaining  orguiization; 
since  its  threatened  dissolution  gtvea  it  no  grievance  on  its  own 
account,  and  any  interference  with  the  rights  or  conduct  of  the 
members  is  a  matter  for  their  own  consideration  and  action.* 

The  ordinary  incidents  of  corporate  existence  attach  where  a 

« Loewe  ».  Lawlor,  mtpn;  W«ten-Fferw  Oi  Co.  t.  State,  48  Tet  C3t.  App. 
162. 108  S.W.  918. 

>  AtUui  f .  neteher  Co.,  88  N.J.  Eq.  658, 55  Atl.  1074 ;  Willnw  t .  SUvennan. 
100  Md.  341,  71  Atl.  962. 

*  Maherty  v.  LongBhoremen's  Ben.  See.,  90  Me.  253,  59  Atl.  58. 

«CaMy  t.  TypographiesI  Union,  45  Fed.  135;  Coeur  d'AIene  Conaol.  Min. 
Co.  ».  Miners'  Union,  61  Fed.  260. 

■Franklin  Union  t.  People,  220  111.  355,  77  N.E.  176;  Master  HocMahoen' 
Am'ii ».  Qulnlhraa,  83  App.  Dir.  459, 82  N.Y.  Supp.  288. 

*  8Bw  State  Cooaeil  No.  1 1.  Bhoadea.  7  Colo.  311. 4S  Pas.  451. 


218        LAW  OF  THB  BMPLOTMSNT  OF  LABOR 


labor  organization  procures  its  incorporation;  these  include 
the  power  to  suo  and  be  sued,  and  its  legal  and  financial  liability 
to  the  extent  of  its  funds  for  its  corp>orate  acts  and  proceedings, 
being  represented,  as  are  other  corporations,  by  properly  desig- 
nated and  authorised  boards  or  offioiab.^  What  has  been  said 
as  to  exceptional  treatment  of  labor  organisations  finds  illustra- 
tion in  this  connection,  since  such  bodies  are  permitted  to  in- 
corporate,  while  the  laws  governing  corporate  action  generally 
ars  made  inapplicable  to  labor  unions  by  special  provisos. 
Such  exemptions  occur  in  the  enactments  known  as  anti-trust 
laws,*  in  insurance  laws,'  and  in  the  Federal  statute  providing 
for  the  taxation  uf  corporations/  That  \,hese  laws  are  dis- 
criminatory in  favor  of  organized  labor  as  agunst  other  forms 
of  organizations  probably  no  oue  would  care  to  dispute,  and  it 
has  been  broadly  intimated  that  proviaons  of  this  sort  are  un- 
constitutional,* while  on  the  other  hand,  a  clause  exempting 
labor  unions  from  the  provisions  of  an  anti-trust  law  has  been 
declared  c  onstitutional.' 

Though  the  incorporation  of  labor  organizations  is  thus  per- 
mitted, or  even  encouraged,  they  are  for  the  most  part  unin- 
corporated, and  are  frequently  described  as  voluatary  associa- 
tions as  distinguished  from  partnerships  on  the  one  hand  and 
from  incorporated  bodies  on  the  other.  Though  they  require 
the  payment  of  an  initial  sum  on  entrance,  and  of  periodical 

>  Franklin  Union  «.  People,  tupra. 

*La.,  Acta  1892,  No.  90,  sec.  8;  Mich.,  CJj.,  mo.  11382;  Mont.  Pen.  C, 
■ec.  325 ;  Nebr.,  C.S.,  sec.  5343a,  etc. 

*  Mass.,  Acts  1909,  ch.  514.  sec.  30. 
« Act  of  Aug.  6, 1909.  36  Stat.  113. 

•Cote  V.  Murphy.  159  Pa.  St.  420,  28  Atl.  190;  In  n  Grice.  79  Fed.  827; 

Waters-Pierce  Oil  Co.  t.  State,  48  Tex.  Civ.  App.  162.  106  S.W.  918. 

•  Cleveland  v.  Anderson.  66  Nebr.  252,  92  N.W.  306. 


TRADE  AND  LABOR  ASSOCIATIONS  219 


dues,  they  are  not  thereby  oonstitated  aaMXiutioiis  with  a  capi- 

t  J  stock ;  and  not  being  conducted  for  profit,  they  are  not  fai 
general  subject  to  the  regulations  of  law  applicable  to  budnrai 
associations,  incorporated  or  otherwise.' 

Such  bodies  have  at  common  law  no  legal  status  or  authority, 
ranking  with  merely  socia'  organizations,  so  far  as  rights  and 
powers  are  concerned.'    The  charter,  so-called,  of  such  an  as- 
sociation is  not  granted  by  the  state,  but  by  a  superior  organisa- 
tion, and  is  rathor  a  certificate  of  affiliation  than  a  chartw. 
The  identity  of  an  organization  depends  on  its  individual  mem- 
bership and  their  mutual  agreements  rather  than  on  any  char- 
ter or  certificate  of  affiliation,  so  that  the  latter  can  be  changed 
without  affecting  the  organization  as  an  entity.'    It  conveys 
no  property  rights,  but  is  a  basis  for  such  agreements  as  persons 
wishing  to  become  members  are  supposed  to  make,  and  is  binding 
to  the  «ctent  at  least  of  making  conformity  thereto  obligatory 
under  penalty  of  loss  of  membership.*    The  nature  of  such 
organisations  is  in  part  the  result  of  the  mutual  agreements  of  the 
members  among  themselves  on  the  basis  of  such  charter  and 
the  constitution  and  by-laws,  ^  hich  are  construed  as  being  con- 
tracts between  the  members,^  thus  giving  rise  to  a  quasi  corpo- 
rate organization;  and  it  is  in  part  the  result  of  a  joint  interest 

«  Burt  t.  Lathrop,  52  Mich.  106.  17  N.W.  716 ;  St.  Paul  Typothet.  ».  Book- 
binders' Union,  94  Minn.  361,  102  N.W.  725. 

•/n  re  Higgins.  27  Fed.  443;  St.  Paul  Typothetas  t.  Bookbinders'  Union, 
tupn;  Mayer  ».  Journeymen  Stone  Cutters,  47  N.J.  Eq.  619,  20  AU.  492 ;  Bar- 
bour V.  Albany  Lodge.  73  Ga.  474 ;  Iran  Mol^'  Unton  ».  AUis-Chalm^  Co . 
166  Fed.  45,  91  CCA.  631.  ' 

'Sbipwri^bta'.  etc.,  Asaooiation  t.  Mitchell,  (Wash.),  Ill  Pac.  780. 

*  O'Brioi  t.  Musical  Protective  Union,  64  N.J.  Eq.  625,  64  Atl.  160. 

•  Brown  t.  Stoerkel,  74  Mich.  269,  41  N.W.  921 ;  Hammerstein  ».  Parsons,  38 
Mo.  App.  833:  Hyd«  t.  Woo(k.  94  U.S.  828;  Senwnwn't  A«'n  t.  Benson.  75 
Teui5S8.138.W.880. 


220        LAW  or  THE  EMPLOYMENT  OF  LABOR 


of  IIm  msnilMn  in  any  fundi  or  propwty  aeenmultted  by  the 
MNoeiAtion  or  by  ito  afente  or  trartew,  nUflh,  tof«(h  .r  with  the 
fact  that  th«re  is  no  responsible  entity  formed  by  incorpora- 
tion of  any  sort,  leaving  the  individual  members  answerable  for 
the  debts  and  acts  of  the  association,  gives  to  such  associa- 
tions at  least  some  of  the  aspects  of  a  partnership.*  The  rule 
as  to  partnership  funds  is  also  applicable,  so  that  where  an  ac- 
tion is  brought  against  an  umnoorporated  anociation,  its  funds 
will  be  oduuuted  before  the  pmpaiy  ot  hidividual  membera  is 
attached.' 

The  cases  above  cited  are  mainly  those  in  which  tlie  rights 
of  nonmembers  were  affected.  The  case  is  different  when 
persons  in  the  relation  of  fellow-members,  bound  by  mutual 
agreements,  raise  ques^'^ns  within  the  association;  and  where 
the  property  of  the  »ion  has  been  the  subject  of  litigation 

between  members  it  has  been  held  that  the  laws  applicable  to 
corpMatiois  come  into  play.'  In  the  Barrett  case  the  court 
went  so  far  as  to  deiqr  altogethw  that  a  vduntaiy'  aasooialjon 
not  for  profit  partalras  ni  tl  a  nature  d  a  partnership,*  thou^^ 
this  may  be  regarded  as  .  result  of  an  exclusive  consideration 
of  tLe  point  in  issue,  which  was  the  right  of  a  withdrawing  mem- 
ber to  retain  a  portion  of  the  union  funds  which  was  at  the  time 

>  Ku|M  Furniture  Co.  f.  Amalgmatad  Woodwwkara,  166  Ind.  421,  75  N.E. 
877 ;  Atldna  v.  Fletcher  Co.,  65  N.J.  Eq.  668,  66  Ati.  1074 ;  Pstch  Mfg.  Co.  «. 
Capeless,  79  Vt.  1,  63  Atl.  938;  Alli^Chalmers  Co.  «.  Iron  Molders'  Union,  150 
Fed.  165;  Patterson  «.  District  Counofl,  31  Pa.  Super.  112;  Rhode  t.  United 
States,  88  Wadt.  L.  R.  26, 84  App.  D.C.  349. 

*  Inbuach  «.  Farwell.  66  U.8. 666 ;  BraiWMi  *.  ladnstrial  Worion  of  the  Wi^d, 
30  Nev.  270,  95  Pac.  364. 

>  NiUack  on  Societies,  221 ;  Local  UnioB  No.  1.  Teartfle  Worinn  t.  Banatt,  19 
RJ.  663,  36  Atl.  6 ;  Rhode  t .  United  States,  ntpra. 

*  See  also  Richmond  ».  Judy,  6  Mo.  App.  466 ;  Brown  *.  Stoerkel,  supro; 
St.  ]^  Typotheta  f.  St.  FMd  Bookbiadnir  Vaioa,  •«»*•. 


TRADE  AND  LABOR  AS80CUTX0N8  221 


b  Ui  handa.  Tlie  oourt  ruled  that  there  was  no  partnership 
intoeat  in  any  member  gtving  him  a  rli^t  to  any  share,  propor- 
ti(Hiate  or  otherwise,  in  the  funds  or  pnpexiy  of  the  aaaodatkm. 
"He  has  merely  the  use  aad  eiqoyment  of  it  while  a  member, 

the  property  belonging  to  and  remaining  with  the  soeiety,"  a 
view  which  is  clearly  correct,  though  it  involves  the  imputation 
of  a  measure  of  corporate  rights  to  a  voluntary  association.  In 
the  strict  application  of  the  common  law  rule,  however,  volun- 
taiy  aMoeiations  of  this  nature  cannot  be  recognized  in  their 
ooHeetiTe  eapadty  aad  name  as  having  any  legal  existence  apart 
from  their  members;  th^  eannot,  therefore,  sue  nor  be  sued, 
and  it  has  been  held  that  if  hieapadty  is  pleaded,  an  i^junetion 
will  not  lie  agauut  such  an  association,*  and  that  no  judgment 
will  lie  ag^t  an  unmcorporated  union  even  though  it  has  an- 
swered as  defendant ; «  though  the  court  held  in  the  hitter  ease 
that  an  injunction  would  properly  issue  against  a  trade-union 
by  name,  and  would  operate  to  restrain  all  members  who  had 
knowledge  of  it.«  It  was  held  on  appeal  in  the  Allis-Chahners 
case  that  where  an  action  has  been  began  as  against  an  associa- 
ti(m,  and  an  answer  has  been  made  on  behalf  and  in  the  name 
of  the  asHociation,  the  question  ai  ino(nnpeteni^  not  bdng 
raised,  proceedings  had  will  bind  the  association,  and  no  ques- 
tion of  incompetency  will  be  heard  on  appeal*  The  questioa 

«  Km|m  Furniture  Co.  ».  Amalgamated  Woodworkon,  188  lad.  4S1, 78  N.B. 
877;  Fi^tt ».  Watoh,  192  MaM.  872,  78  N.E.  783. 

*.A]Ii»€lialmen  Co.  t.  Iron  Moldm'  Union,  160  Fed.  188. 

•See  alao  Iron  Molders'  Union  t.  Alli»<:halmer8  Co..  196  Fed.  48,  91  CCA. 
831 ;  Jooaa  Olaaa  Co.  ».  Olaae  BotUe  Blowen'  Am'a..  72  N  J.  £q.  683, 66  AtL 
953;  /nreDebe,  148  U.S.  884.  18  Sup.  Ct.  900 ;  AmerioMi  Steel  *  WIro  Co.  t. 
Wire  Dnwen,  90  Fed.  608,  and  caoes  there  cited , 

♦Inm  M<ddera*  Union  ».  Alii»<]halmeri  Co.,  166  Fed.  48,  91  CCJL  631; 
Buaee  *  Co.  •.  Chieeio  TypognpUeal  UaioB.  232  m.  404, 88  N  JB.  988. 


222        LAW  or  THE  EMPLOYMENT  OF  LABOR 


\»  inevHaUe  alw  m  to  tto  effaet  of  the  violfttUm  ci  •a.  iQjunetion 
i«ued  against  an  association,  and  in  what  form  punishment  for 
oontempt  can  be  directed  against  the  organization;  and  it 
appears  that  the  rule  that  no  judgment  will  lie  against  an  unin- 
corporated body  would  necessarily  give  way  when  that  body 
has  disregarded  an  order  of  the  court  (iirected  specifically  to  it. 
As  the  punishment  of  an  asBodatioB  eoi^dend  in  its  corporate 
nature  can  be  sirictiy  only  bgr  n  fine,  the  iwopefty  of  the  associa- 
tion would  first  come  under  the  hand  of  the  court  in  the  satis* 
faetitm  demanded ; '  but  on  account  of  the  partnership  nature 
of  voluntary  associations,  the  members'  property  may  be  at- 
tached, on  a  proper  showing,*  or  the  members  and  officers 
imprisoned,  where  the  punishment  is  for  contempts  or  criminal 
acts,*  since  the  law  will  not  be  placed  in  the  position  of  pro- 
nouncing penalties  upon  an  abetraotkm  such  as  an  intanipble 
organisati(Hi,  leaving  the  members  free  to  disob^  the  orders  of 
the  court  with  inq>unity. 

In  the  abeence  of  statutes  fixing  tin  capacity  ot  an  unincor- 
porated association  it  has  been  hold  in  many  cases  that  actions 
may  be  had  by  or  against  the  members  as  individuals  only,  who 
may  sue  or  be  sued  either  by  joining  all  of  them,  or  one  or  more 
for  all,  if  the  numbers  make  it  impracticable  to  join  all*  In 
the  case  last  cited  it  was  stated  that  the  rule  generally  followed 
in  Massachusetts  requires  the  membos  to  be  mdividually 

>  Barnes  &  Co.  v.  Chicaco  Typographical  Union,  tupra. 

*  Patch  Mfg.  Co. ».  Capeleaa,  79  Vt.  1, 63  Ati.  938 ;  Pattenon  ».  District  Coun- 
^Mtpm;  f .  Indoatrial  Wo^rs  •(  the  Woitd.  mpra. 

*  UJfL    IMm,  M  Fed.  724 ,  In  r«  DOM,  1S8  U.S.  564.  15  Sup.  Ct.  900. 

«  AlUa-Chaimws  'Co.  v.  Iron  Holders'  Union,  150  Fed.  155 ;  Cieland  v.  Ander- 
son, 66  Nebr.  262, 92  N.W.  306 ;  St.  Paul  Typothcts  ».  BodtUaden'  Union, 
stqmi;  Fidutt  t.  Walsh.  102  Mass.  STS.  78  HA  7&3. 


TRADl  AND  LABOR  AflSOGUTIOMB  228 


joined  in  loHi  ftt  ]mw,  wkBe  in  eqaity  proeeedings  repreMotalive 
memben  maj  be  taken  (ot  a  numerooi  dam. 

On  the  other  hand  are  the  oaees  already  dted  in  iHdoh  the 
union  was  regarded  as  an  entity,  and  as  sueh  held  liable  in 
damages.  In  this  view,  damages  may  be  assessed  against  an 
organization  in  an  action  against  it  alone/  or  against  a  union  as 
a  joint  wrongdoer  with  a  designated  person  or  persons;'  and  a 
nonsmt  was  upheld  by  a  federal  judge  in  a  case  where  the 
plaintiff  eoui^t  to  recover  damagea  for  a  violated  eontract  of  an 
unino(Hrporated  aodety  agidnst  four  memlMn  irho  were  sued 
"individually  and  for  themselvea  and  foe  othera,  dBcen  and 
members  of  tlie  unincorporated  association."  * 

The  matter  may  be  settled  by  legislation  auW;>i  ng  the 
bringing  of  actions  at  law  or  suits  in  equity  by  or  against  unin- 
corporated associations  having  some  distinguishing  name  or 
designation  by  such  title ;  *  or  by  a  law  authorizing  one  of  a 
number  ct  persons  jointly  concerned  as  plaintiffs  or  defendants 
to  appear  for  all A  law  of  the  former  class,'  granting  the 

'  Purvb  V.  Brotherhood  of  Cupenten  and  Joiners,  214  Pa.  St.  348, 63  Atl.  585. 
■Wyeman  ».  Deady,  79  Coaii.  414.  85  Atl.  139  (Deady  waa  the  boaineM 
■tent  of  the  union) ;  Branson  •.  Industrial  Workers  of  the  World,  tupra. 

*  Ehrlieh  t.  Willenski,  138  Fed.  425,  citing  Ash  v.  Guie,  97  Pa.  493, 39  Am.  Rep. 
818 ;  Pain  v.  Sample,  168  Pa.  428,  27  Atl.  1 107.  (This  case  evidently  turned  on  a 
daasifieation  of  the  union  as  a  beneficial  society,  coming  under  a  statute  of  the 
■Ute  (B.  P.  Dig.  p.  219,  see.  16)  by  iriiieh  members  of  such  societies  were  relieved 
from  personal  liability  for  the  obligations  of  the  society,  which  might  be  proper 
if  a  b'caob  of  contract  only  was  under  consideration,  but  which  could  hardly  be 
fairly  ap;..  able  ia  many  eaaea  iriMie  wtion  aetiritiea  wwe  under  oonaideration.) 

*  Mich.,  C.L.,  see.  10085;  Conn..  QJB.,  see.  688;  N.  J..  Q.  8..  p.  2588;  Vt., 
P.S.,  sec.  1448. 

*  Ind.,  A.S.,  sec.  270  (see  Sourse  «.  Marshall,  23  Ind.  194) ;  Ohio,  Oen.  Code, 
■ee.  11267  (see  Kealey  s.  Faulkner,  18  Ohio  S.  A  C.  P.  Dec.  498) ;  Ncv.,  CJL,  see. 
tlOB  (ase  Bnuson  t.  Industrial  Worken  of  the  World,  «i<pni). 


224        LAW  OF  THE  EMPLOYMENT  OF  LABOR 


rigbt  ot  action  against  the  organization  without  luniting  the 

common  law  right  to  proceed  against  the  members  as  partners, 
was  held  to  be  constitutional  and  applicable  to  a  labor  organiza- 
tion.* The  action  of  the  court  in  the  case  in  which  a  nonsuit 
was  granted  on  account  of  the  action  being  brought  against 
certain  members  of  the  union  rathw  than  against  the  union  as 
a  whole*  would  restrict  recovoy  damages  in  a  civil  action 
to  the  funds  of  the  association,  wMdh  corre^nds  to  an  action 
against  a  corporation.  As  p<Mnted  out  in  the  note,  supro,  this 
view  rests  on  a  statute  of  the  state  oi  Penns^vania. 

As  to  the  contracts  of  an  unincorporated  association,  the  In- 
dividual members  are  liable  at  common  law  either  because  they 
held  themselves  out  as  agents  of  a  principal  that  had  no  existence, 
or  because  they  are  themselves  principals,  since  there  is  no  other 
in  existence.*  Part  (rf  tlM  membos  cannot  sue  others  on  a 
c<«tract  of  an  associati<m;  *  or  for  twt  (m  account  of  the  neg- 
ligence of  (me  employed  by  tlM  assodatioD,  since  any  mich  per- 
son is  as  much  the  employee  of  the  aggrieved  party  as  of  his 
associates.'  In  this  ruling  the  law  of  principal  and  agent  is 
brought  into  view,  which  was  formally  held  to  apply  in  a  case 
involving  contracts  between  two  unincorporated  associations.' 
The  agency  must  be  clearly  made  out,  when  a  contract  is  the 
subject  ci  action,  since  no  individual  member's  liability  will  be 
presumed  from  the  mere  fact  <d  associati<m.' 

>  VA  HMter  Co.  f .  boa  If  oMen'  Union.  13B  Wtk.  854, 88  N.W.  889. 

*  Ehriich  V.  Willensid,  supra.    *  Lewk  t.  TSton,  64  lom  280, 1«  N.W.  911. 

*  MoMfthon  •.  Rauhr.  47  N.Y.  67. 

•  Mwtin  t.  N.P.B.  km'n.,  68  Minn.  5S1, 71  N.W.  701. 

•  St.  Paul  Typotheta  •.  St.  Paul  Bookbindm'  UnioD,         oUfat  Mbnua- 
tnut ».  Robinaon,  52  Minn.  335,  54  N.W.  188. 

'  Richmond  •.Jirir.e  Mo.  As^«8«.  aNata»LMriort.IiOMi%  187FkI.622 

(C.C.A.). 


TRADE  AND  LABOR  ASSOCUTIONS  226 

Bdag  vohmtaiy  aflsodatioiis,  their  maintenaiue  and  prawr- 
vation  or  the  continued  membership  therein  of  any  nuUvidual 
is  not  a  subject  that  the  courts  can  undertake  to  direct  or  ae- 
cure,»  though  members  wUl  be  protected  against  improper 
expulsion  or  other  action  depriving  them  of  valuable  statu*  or 
of  property  m  union  funds,  tools,  or  other  advantages.' 

It  18  obvious  that  in  many  respects  courts  of  equity  are  better 
•darted  to  the  determination  of  the  rights  of  such  bodies  and 
ci  penom  in  oontrovetqr  with  them,  since  their  intangible  na- 
ture and  the  frequent  inacoessibility  or  nonesistenee  of  associa- 
tion funds  make  proceedings  against  the  persons  of  individuab 
the  only  method  of  enforcing  rights,  which  is  a  method  of  pro- 
cedure for  which  courts  of  equity  are  especiaUy  adapted,  the 
judgments  of  law  courts  being  generaUy  enforced  against  a 
designated  fund  or  object  by  proceedings  in  rem;  there  is,  how- 
ever, a  growing  tend«icy  to  sink  the  distinctions  between  the 
two  forms  of  procedure.  Under  the  English  common  law,  an 
unmcorporated  association  could  not  come  into  court  for  any 
redress  whatsoever  of  coUeotive  grievances,  since  the  granting 
of  charters  of  incorporation  was  a  jealously  guarded  function  of 
the  state,  and  no  body  of  men  could  by  associating  themselves 
together  without  such  a  charter  arrogate  to  themselves  any  of 
the  functions  of  an  entity  independent  of  and  apart  from  the 
mdividuab  composing  it.»    A  treasurer  might  therefore  em- 
bearie  the  assodation  funds  with  impunity.*    This  has  been 
mMie  the  subject  of  stotutory  provision,  however,  so  that  there 

'(VBrieB  t.  Moiioml  M.  P.  ft  B.  Unic^  64  N.J.  Eq.  526.  M  AU.  160 

»  O'Bnen  v.  Musical  M.  P.  A  B.  U..  tupra;  Weiaa  ».  Same.  189  P».  gt.  446. 42 

Atl.  118 :  StriMrt  t.  United  Brotherhood,  01  Minn.  180.  97  N.W.  OM:  CoMon 

Jaininef^etc.,t.T«ylor.23TeK.Ciy.A|>p.867.«68.W.863. 

»Lloydr.Lorin«.6V«fc77».  «  Brie.  Twd.  Untaw,  p.  4. 

Q 


226        LAW  OF  THE  EMPLOYMENT  OF  LABOR 


b  now  a  right  in  the  members  representing  an  tmocaaHoa  to 
proceed  against  a  defaulting  officer  for  the  recovery  of  associa- 
tion property.'  There  is  in  the  United  States  no  question  as 
to  the  right  of  an  association  not  formed  for  illegal  purposes  to 
maintain  an  action  for  the  recovery  of  ita  funds.* 

SKcnoN  112.  Btdes,  By-laws,  etc.  —  The  constitutions,  rules, 
by-laws,  or  by  whatever  name  called,  the  ac^eem«nt8  accepted 
and  entered  into  by  the  msmbens  of  aaaociatiau  are  contracts 
between  themselves,  and  in  so  far  as  they  are  Intimate,  will, 
on  a  proper  showing,  be  enforced  by  the  courts.*  While  a  de- 
gree of  restraint  of  trade  is  involved  in  every  agreement  not  to 
accept  employment  except  xmder  conditions  conforming  to  a 
rule  fixed  by  an  association,  this  lact  alone  does  not  invalidate 
such  rule,  so  far  as  internal  administration  is  concerned,  but  the 
extent,  purpose,  and  methods  of  enforcement  ci  such  agreements 
may  bring  them  undor  the  ban  of  the  law.  A  man  cannot  enta 
into  a  valid  contnct  to  the  injury  of  a  third  party  or  the 
prejudice  of  the  public,*  and  what  an  individual  cannot  lawfully 
do  alone  he  cannot  do  by  union  with  others,  so  that  an  agree- 
ment to  surrender  industrial  freedom  to  an  association  is  invalid 
and  may  vitiate  the  entire  basis  of  an  association's  agreements.' 
Thus  an  association  was  not  allowed  to  enforce  a  fine  against  a 
member  who  had  bid  less  for  a  piece  of  wwk  than  the  rate  fixed 
by  the  aasodatiim  of  which  he  was  a  member,  thout^  the  fine 

1 31  &  32  Vict.,  ch.  116.    See  R.  ».  Blackburn,  C.C.C.,  Dec.  17,  1868. 

'  Snow  r.  Wheeler,  113  Mass.  179 ;  Brown  v.  Stoerkel,  74  Mich.  269,  41  N.W. 
021 ;  Rhode  t.  United  States,  38  Wash.  L.  Rep.  26, 34  App.  D.C.  249. 

*  Flaherty  •.  Pwtland  Longdioranen's  B.  Soe.,  M  M*.  358,  M  Atl.  AS ;  Bnnra 
*.  Stoerkel,  74  Mich.  269,  41  N.W.  031. 

« Crawford  «.  Wick,  18  Ohio  St.  190,  98  Am.  Dec.  lOt. 

•Eaaley*.  Faulkner.  18  Ohio  a  *  C.  F.  Dm.  408. 


TRADB  AND  LABOR  A880CIATI0NB  227 

WM  aaeased  in  aceardaiioe  with  the  ruleB;  and  this  <m  the 
ground  that  while  there  was  not  an  aetual  monopoly  or  control 
of  the  class  of  services  involved,  so  far  as  the  agreement  went 
it  was  restrictive  of  competition,  and  subject  to  the  same  legal 
objection  as  a  more  extensive  combination.!  The  court  in  this 
case  went  no  further  than  to  refuse  to  lend  its  aid  in  the  collec- 
tion of  the  fine,  but  a  rule  that  prescribes  the  violation  of  con- 
tracts or  a  refusal  to  handle  intersUte  commerce  from  a  pro- 
scribed raUway,  or  oth<»wise  brings  about  a  conflict  with  pubUc 
pohcy,  wiU  not  only  not  be  enforced,  but  wiU  be  made  the  sub. 
ject  of  judicial  condemnation,'  even  to  the  extent  of  the  disso- 
lution  of  the  oflFending  association.'  It  has  been  held  that 
courts  have  no  visitorial  power  to  determine  the  reasonableness 
or  otherwise  of  the  rules  of  an  association,  the  ouly  question 
being  as  to  whether  or  not  they  have  been  adopted  according 
to  the  agreed  methods  of  the  body  concerned ;  *  but  it  is  obvious 
that  this  can  relate  <mly  to  the  rules  as  such,  and  not  to  their 
enforcement  or  operation.  If  no  property  rights  are  involved, 
the  enforcement  of  the  rules  will  in  general  be  left  to  the  oigani^ 
aations  themselves,  and  the  courts  wiU  not  intervene  m  such 
voluntary  and  personal  matters  as  are  usually  involved  in  as- 
sociation arrangements;*  but  where  there  are  valuable  rights, 
as  of  tools  or  other  property,  or  benefit  or  insurance  funds,  or  if 

«M0ST.iin.9B.82aW.858.  —wrrwmi*. 
^^Wrt«ho««    <W.  S5  IVmL  149 ;  Oi^    B««li»  lOS  WiU.  81  N.W. 

•  Sealagr  w.  Itolkner,  tupn. 

*  Owen  •.  Feltcn,  42  Ind.  App.  675,  84  N.E.  166. 

J?'^^^'  .^"^l*'      *  ®-  **  N"^-  AU.  IfiO;  Screw. 

S.V.f  »  "         ^  "  J-tton-Dekle  Lumber 

Co.  fl.  Mather.  88  na.  909. 48  Bo.  800. 


228        LAW  OF  THE  EMPLOYMENT  OF  LABOR 


privileges  of  employment  are  affected,  the  courts  will  see  that 
the  rules  are  strictly  complied  with  for  the  protection  of  mem- 
bers in  their  rights  thereunder ;  ^  so  also  in  regard  to  objections 
of  members  against  acts  alleged  to  be  outside  the  scope  and  pur- 
pose of  the  organization  as  indicated  by  its  regulations ;  and  any 
member  is  entitled  by  his  rights  as  mich  to  call  on  the  courts  to 
enjiHn  a  diqMurtuze  by  the  orgiuuaati<m  tnm  its  i»tq[>er  fidd  of 
action.'  Courts  have  also  fl(»M  so  far  as  to  inmiounce  essting 
rules  and  bylaws  inadequate  to  protect  the  meaben*  rights, 
or  unreasonaUe  and  vmd  as  determinative  of  a  number's  just 
rights.* 

Not  every  rule  that  is  unenforceable  at  law  is,  therefore,  void, 
but  the  courts  will  say  no  more  than  that  the  persons  party  to 
such  agreements  are  left  to  their  own  contracts,  unless  actually 
unlawful ;  and  no  l^(al  sancti<m  of  such  hor6a  line  agreements, 
as,  fm  instance,  those  in  restnunt  of  trade,  will  be  ^iven.* 
Whrae  the  enforcement  of  such  rules  by  a  union  is  shown  to 
work  iigustice  npoa  a  member,  he  may  by  repudiating  his  agree- 
ment, recover  upon  an  independent  ground  of  action,  his  agree- 
ment being  contrary  to  public  policy.*  And  an  employer's 
right  to  a  free  labor  market  will  support  his  right  to  an  injunc- 
tion to  prevent  the  enforcement  of  the  rules  of  a  labor  organiza- 

>  Steinert «.  Carpeaten  and  Joiners,  01  Minn.  189, 97  N.W.  668 ;  Flaherty  r. 
Longahoramen's  Beneficial  Soc..  tupra;  Brennan  •.  Batten,  73  NJ.L.  729,  65 
Atl.  16S;  Thompaoii  t.  LoeonMtire  EngiiMMa,  41  T«im  CIt.  App.  176, 91  S.W. 
8S4. 

'Flaherty  v.  Lo. ^jhoremen,  mtpra;  Otto  «.  Journeymen  Tailon,  75  Cal. 
808, 17  Pac.  217. 

•People  w.  Musical  M.P.U..  118  N.Y.  101. 23  N.E.  120;  CoCtoa  JMBmen', 
•le.,  Aaa'n.  t.  Taylor,  23  Texas  Civ.  App.  867, 66  S.W.  563. 

*  O'Brien  t.  Musical  M.P.  St  B.lt»  tmfm. 

•  Bnaau  w.  Batten,  niyr*. 


TRADE  AND  LABOR  A880CUTI0NS  229 

tka  by  mnns  of  fines  and  penalties  against  its  members  who 
widi  to  continue  in  or  to  enter  his  employment.'  It 
follows  that  rules  and  penalties  directed  against  persons  not 
members  of  the  association  are  void,  smoe  no  one  can  be  required 
to  purchase  his  freedom  to  earn  a  livelihood  by  submission  to 
regulations  imposed  upon  him  by  otiier  tiian  governmental 
agencies.* 

It  has  occurred  in  actions  against  persons  who  were  members 
or  <^cers  of  labor  organizations  that  the  defense  was  offered 
tiiat  the  acts  complained  of  were  done  only  as  carrying  out  the 
rules  and  orders  <rf  tiie  union.  From  what  has  been  said  as  to 
the  status  and  character  of  voluntary  anodations,  it  is  apparent 
that  such  a  defense  could  not  be  allowed,  and  the  courts  so  hold,' 
intimating  broadly  that  the  existence  of  rules  prescribing  such 
conduct  as  was  made  the  ground  of  the  action  was  in  itself  proof 

o.rSI*'!!!.*  *        ^'  Union.  200  Maas.  110. 86  N.E.  879 ;  Je«y 

aty  Wntto,  Co.     CMddy.  63  N.J.  Eq.  769.  63  Atl.  230 ;  Longshore 
Co. ».  HoweU.  26  Ore.  627,  38  Pac.  547.  ^ 
»  March    Bricklayers',  etc..  Union.  79  Conn.  7. 63  Atl.  291 :  Union  P  R  Co 
rRuef.  120  FW.  102 ;  C««r    R„th«fo,d.  106  M.-.  1.  8  Am.  Rep  287^2: 
n  JkI^ 2^  «  A*'-  327:  Pickett  r.  Walsh.  192  Mass.  672.  78 

N.B.  768 ;  Burke  ..  Fay.  128  Mo.  App.  690. 107  S.  W.  408.  In  the  March  c.^  . 
pet  Jty  was  »me^  against  a  brick  numufwtuwr  who  h«i  .old  brick,  to  « 
unfair  bo«  ia«,n.  and  sub^KiuenUy  to  an  employer  of  union  labor.  This 
Wtat  enplQjrer  ww  threatened  with  a  strike  unless  he  would  guarantee  the 
Pjiyment  of  the  fine  against  March.  ThU  he  did.  and  afterward,  pirfd  the  line, 
^dmg  the  ««Kint  out  of  money  due  M«ch.  who  then  sued  the  union  to 

-cured  by  threat,  and  not  at  all  in  the  way  of  the  adjustment  of  the  terms  of 
trade  competition ;  though  even  this  would  not  have  juMilied  the  method,  uasd 
to  procure  the  payment  of  the  money.   Bee  farther,  note,  p  215 

Um«.  «oeUtlon  owlered  a  hea«e  and  carriage,  driven  away  from  • 

^tMuAd  bnMiMm  from  Boutwell  on  account  of  aa 
•V wu_t  ndw  pMMltjr  to  deal  only  witii  memben  of  the  aModation). 


230        LAW  OF  THB  EMPLOTM£NT  OF  LABOR 


of  an  ill^(al  purpose.  It  nuqr  be  said,  ibetei<ne,  that  obedience 
to  such  rake,  instead  of  being  mattw  <rf  defense,  would  rather 
be  construed  as  an  offense  in  itself,  the  rules  bdng  evidence  of 
an  unlawful  purpose,  as  against  public  policy.  The  general 
limitation  on  i  ilea  of  associations  is  succinctly  stated  in  a  case 
in  which  it  was  sdd  that  they  must  not  be  in  violation  of  the 
laws  of  the  land,  or  of  any  inalienable  right  of  the  members.^ 

Where  a  labor  organization  has  been  enjoined  from  interfer- 
ing with  the  employment  of  monbers  of  another,  an  act,  the 
purpose  and  ^ect  of  which  are  to  intorfere  w>.h  such  parsons, 
is  a  violation  of  the  injunction,  and  the  claim  that  such  an  act 
was  performed  merely  as  carrying  out  the  ruks  of  a  voluntary 
association  is  no  defense.* 

Section  113.  Membership.  —  The  rights  of  members  of  labor 
organizations  are  necessarily  chiefly  controlled  by  the  terms  of 
agreement  embodied  in  the  constitutions  and  by-laws  of  the 
organisations  themselves.  The  effect  of  such  agreements  and 
the  limitations  of  monbers'  rights  tii«reundw  have  heea  con- 
adered  in  part  in  the  forqpHng  section.  Members  will  in  general 
be  held  to  look  to  the  rules  for  their  rights,  and  actions  taken 
under  such  rules  will  not  be  interfered  with  unless  there  is  proof 
of  the  violation  of  civil  rights  or  of  a  failure  of  the  organization 
to  carry  out  the  provisions  of  its  own  regulations.'  Expulsion 
is  the  extreme  penalty  enforceable  by  an  organization  of  this 
class,  the  collection  of  coercive  or  penal  fines  not  being  favored 
on  account  of  the  restrictive  features  frequently  contained  in 

I  otto  «.  Journeymen  TaUon,  75  Cai.  308. 17  Pac.  217. 
«  Chicaco  Mwatioa  of  Muiioiua  t.  Amwicui  M uMdut'  180  lU. 

App.  8S. 

'SenwiiMa'a.  etc.,  Am'b.  •.  Benaon,  75  Tex.  665,  13  8.W.  380;  Otto  t. 
JbwMsmB  lUon,  78  CM.  S06. 17  Fm.  317. 


TRADB  AND  LABOR  A880CUTI0NS  231 


the  rules.   It  has  been  said  that  no  mandatory  injunction  could 
properly  issue  to  compel  restoration  to  membership  of  one  ex- 
pelled fhmi  •  society,  as  a  party  cannot  be  compelled  by  in- 
junction to  undo  what  he  has  done ;  ^  but  the  weight  of  au> 
thority  is  on  the  other  side,  and  where  the  rules  are  shown  to 
be  inadequate  to  protect  a  member's  rights,*  or  have  not  been 
complied  with  in  due  form,'  or  if  their  enforcement  would  be 
against  public  policy,*  a  mandamus  will  issue  for  a  restoration 
to  membership.   This  does  not  preclude  the  right  to  redress 
for  damages  shown  to  have  accrued  as  the  result  of  such  im- 
proper expulsion,  and  the  issue  of  the  mandamus  may  be  re- 
garded as  supporting  the  claim  for  such  damages.*  Besides 
material  interests,  the  standing  and  character  of  organised  labor 
as  affecting  opportunities  of  employment  may  come  into  ac- 
count in  reckoning  the  value  of  membership  in  a  labor  organiza- 
tion.*  A  member  seeking  restoration  to  membership  will  be 
required  to  exhaust  the  means  of  redress  offered  him  within  the 
organization  before  the  courts  will  take  cognizance  of  his  alleged 
grievances ;  *  though  this  rule  will  not  be  enforced  where  dam- 
ages are  sought  for  the  violation  of  property  rights.'  Where 
loss  oi  emplojrment  b  caused  by  unlawful  suspension,  restora- 
tion by  the  union  leaves  the  matter  of  damages  opea  to  trial  at 

*  Champion  v.  Hannahan,  128  111.  App.  387. 

»  People  ».  Musical  M.P.U.,  118  N.Y.  101,  23  N.E.  129. 

•WeiM  ».  Musieal  M.P.U.,  189  Pa.  St.  448.42  Atl.  118;  Cotton  Jammers', 
etc..  AsB'n.  v.  Taylor.  23  Texas  Civ.  App.  367,  M  S.W.  653;  DingiraU  t.  Aan- 
dation,  4  Cal.  App.  565.  88  Pac.  697. 

*  Schneider    Local  Union,  116  La.  270, 40  So.  700. 

*  People  «.  Musical  M.P.U..  mpra. 

*  Campbell  ».  Johnson.  167  Fed.  102.  92  CCA.  654. 

'Harris  ».  Detroit  Typographical  Union,  144  Mich.  422, 108  N.W.  M2;  St 
Louia  S.  W.  R.  Co. «.  Thompaon,  102  Tez.  89, 113  S.W.  144. 
•St  Loofa  8.WJEL  Co.  t.  Tbompaon,  supro. 


232       LAW  OF  TBI  IMFLOTMINT  OF  LABOR 


law,  and  a  ■tatement  vaiaa  that  it  inovides  adequate 

mMiM  of  ndrtM  wiU  not  pn?«iit  the  oooit  fro^ 
tion  under  considention  and  raukring  judgment  aoeovdinc  to 
the  whole  evidence ;  ^  so  also  where  the  injured  penon  takes  an 
appeal  within  the  union  on  the  matter  of  improper  procedure 
under  the  rules,  since  such  an  appeal  cannot  be  construed  as 
waiving  one's  legal  right  to  damages  resulting  from  the  pro- 
cedure of  which  complaint  is  made.'  If  the  expulsion  was 
Iffoeuzed  by  the  interpontion  <rf  a  thu-d  party,  such  party  may 
be  joined  as  a  defendant  in  an  acti<m  f<nr  damages;  but  inas- 
much aa  he  alone  could  not  have  effected  the  ezpuUcm,  he  can- 
not  be  held  alone  re8p<»isible  therefor.' 

It  has  ah«ady  been  pomted  out  that  a  member  may  obtain 
redress  against  a  union,  either  where  the  rules  have  not  been 
complied  with  or  where  they  do  not  offer  adequate  redress  for 
grievances  resulting  from  injurious  and  imwarranted  action  by 
the  union  in  its  official  proceedings ;  and  that  this  may  extend 
80  far  as  to  procure  the  diaaolution  <d  a  union  and  the  distribu- 
tion of  its  funds  <m  the  o(»iqdalnt  of  OMmben  unfairly  dealt 
with,  on  a  showing  that  the  bami  <rf  the  wganisation  is  an  ill^ 
agreement  in  restraint  of  trade,  the  agreement  bong  disaffirmed 
by  the  complaining  members  the  courts  would,  however, 
refuse  to  seek  to  secure  any  rights  claimed  by  members  within 
such  an  organization.  Where  the  conduct  complained  of  is 
that  of  an  employee  or  agent  of  the  association,  no  redress  can  be 
had  by  a  member  unless  against  the  person  guilty  of  the  wrong 
cmnplained  of.' 

lOu^bdt.  JliAnna,ie7M.  102, 92  C.C  JL  Ui. 

•  Bluchard  t.  Diatriot  Council,  77  N. J.L.  389, 71  Aid.  1181. 
*St.  Louis  8.  W.  R.  Co.  t.  Thompwm.  tupn. 

*  Eealey  t.  Faulkner,  18  OUo  &  *  CP.  Dm.  488. 

■  Mutta  t.  N.P.  Bm.  Am'b..  88  ICao.  881. 71  N.W.  101. 


TRAD!  AND  LABOR  A8S0CIATI0NB  233 


Applicants  for  membership  must,  of  course,  comply  with  the 
requirements  pceteribed  for  admission  to  such  membership, 
•ad  no  OM  eaa  dontad  admkwioin  as  a  right.  On  the  other 
hand,  an  a8sooiati<mean  make  m)  claim  <m  anyone  not  a  member 
on  account  of  benefits  tot  proteetkm,  so  called,  oa  the  ground 
that  it  allowed  him  to  work  for  a  time  on  jobs  on  which  its 
members  were  engaged,  or  on  other  grounds,  since  the  right  of 
employment  is  one  of  a  free  citizen,  and  does  not  depend  on  the 
approval  of  any  association  or  body  of  men.'  Representations 
made  by  applicants  for  membership  are  not  necessarily  guar- 
antees, but  are  to  be  reascmaUy  oonstnied  as  ainresrions  of  the 
i^cant's  belief;  as,  for  instance,  whore  a  workman  declares 
himself  able  to  command  the  avm^  wages  of  his  trade. 
Forfeiture  of  preliminary  payments  on  the  amount  of  the  faiitia- 
tion  fee,  the  return  of  which  to  a  rejected  applicant  is  conditioned 
on  the  correctness  of  the  statements  made  by  him  in  his  appli- 
cation, is  not  warranted  therefore  on  the  ground  that  he  was  not 
finally  regarded  by  the  union  as  competent,  though  it  was  within 
their  powor  to  reject  his  applicati<m.*  Representatifms  must  be 
in  good  faith,  howevw,  and  the  courts  wiU  dedde  mattos  <rf 
fact  submitted  to  them  in  the  course  aS  ccmtrovmqr;  fraud  or 
falsity  will  be  held  by  them  as  sufficient  grounds  for  refusing  as- 
sistance to  an  expelled  member  who  is  shown  to  be  guilty  thereof.* 

While  a  member  of  a  labor  organisation  may  join  an  outside 
person  as  defendant  in  a  suit  for  damages  for  procuring  his  ex- 
pulsion therefrom,  he  has  as  a  matter  of  conmion  law  no  recovery 
agumt  an  employer  ^o  may  insist  on  his  withdrawal  from  a 

>  Lavia  t.  CkMgrove.  76  N  J.L.  344, 67  Atl.  1070. 
•  Levin  «.  Cotgnyn,  rupra, 

'PsrUiiKMi  Co.  a.  Buildiac  TradM  Coniiefl,  IM  CaL  Ml,  M  Twc  1007; 
XnoN  t.  Bute,  las  N.T.  8tipp.  S4. 


234       lAW  or  TBI  IBfFLOTMlNT  OF  LABOB 


union  as  a  condition  of  employment,  since  it  is  a  part  of  the 
freedom  of  c(»itract  <tf  dther  party  to  make  or  ntein  item  lueh 
oontraetB  on  whatever  grounds  seem  to  than  suffident.*  A 
numbn  <d  itates  have  undortaken  to  regolale  this  nibjeot  by 
statute,  inoviding  penalties  against  employers  ifho  make  it  a 
condition  that  their  employees  shall  not  become  or  remain 
members  of  labor  organizations.'  With  practical  unanimity 
this  type  of  statute  has  been  declared  unconstitutional,  as  in- 
terfering with  the  rights  of  all  men  voluntarily  contracting  to 
make  or  continue  their  contracts  m  accwdaiioe  with  their  own 
choice,  80  long  as  nothing  mjurioua  to  the  public  intwest  is  in- 
ydved.  Furthanmne,  sueh  laws  restrict  the  freedom  ci  a 
oertun  class  <rf  individuals,  and  are  held  void  as  infringing  on 
the  rights  of  such  persons  in  the  formation  of  contracts.'  The 
sole  exception  to  this  view  appears  to  be  a  ruling  by  an  Ohio 
court  that  the  law  of  that  state  was  constitutional,  since  it  did 
not  interfere  with  the  right  to  discharge,  but  only  prohibited 
coercmg  or  attempting  to  coerce  an  employee  into  quitting  a 
union.*  Such  a  ruling  leaves  tiie  law  on  the  statute  books,  but 
takes  away  any  practical  efifect  it  may  have  been  assumed  ever 
to  have. 

A  oertun  protection  of  the  ri^ts  of  membos  in  a  odiective 

>  B<^  «.  Western  Union  Tel.  Co.,  124  Fed.  246 ;  People  v.  Marcus,  185  N.Y. 
357, 77  N.E.  1073. 

«  Cal.  Pen.  Code,  sec.  679 ;  Conn.,  G.S.,  sec.  1297 ;  Mmss.,  Acto  1909,  ch.  154, 
sec.  19 ;  Ohio,  Gen.  Code,  sec.  12943 ;  Olda.,  Acta  1907-1908,  ch.  813 ;  U.S., 
30  Stet.  428. 

»  GUlespifc  ».  People.  188  lU.  176, 68  N.E.  1007 ;  Coffeyville  Brick,  etc.,  Co.  v. 
Perry,  69  Kans.  297,  76  Pac.  848;  State  t.  Julow.  129  Mo.  163, 31  S.W.  781; 
Commonwealth  v.  Clark.  14  Pa.  Supflr.  Ct.  435;  State  «.  Kreutsberg.  114  Wis. 
630, 90  N.W.  1008 ;  Adair  •.  United  States.  208  U.S.  161, 28  Sup.  Ct.  277. 

«  Davis  t.  State.  80  Ohio  Wkljr.  Law  Btil.  342. 


TBADl  AND  LABOR  ASSOCIATIONS  236 


wnie  ii  attempted  by  *  law  of  one  state,  whieh  forbids  the  giyiiig 
of  bribes  to  offieers  or  scents  of  anions  for  the  purpose  of  seeor* 
faig  the  adjustment  of  kboe  diqmtes,  or  of  influencing  them  hi 
the  performanoe  of  their  duties  as  representatives  of  such  ot- 

gamsations.* 

Section  114.  CoUecHve  Agreements.  —  The  principles  govern- 
ing contracts  of  employment  considered  in  Chapter  I  are  those 
that  apply  in  cases  of  contracts  between  individuals ;  but  in  the 
development  of  oi^anisations  in  industry,  there  has  arisen  % 
form  of  oontraet  hi  which  the  parties  are  a  Ubor  organisation  or 
its  rqiiesentative  on  the  <me  hand,  and  an  employer  or  the  rep- 
lesmtative  of  a  group  of  employers  on  the  other.  These 
contracts  concern  themselves  with  wages,  hours  of  labor,  clas- 
sification of  employees,  and,  in  fact,  with  all  the  conditions  of 
employment.   They  may  be  said  generally  to  attempt  to  provide 
for  their  own  enforcement,  by  provisions  for  arbitration,  the 
deposit  of  a  forfeit,  or  otherwise  without  appeal  to  Uw.  The 
legal  construction  of  such  contracts  lias  not,  therefore,  bem 
much  disctused  by  the  courts,  and  tiie  cases  avaihOile  involve 
such  a  variety  of  elements  that  a  general  rule  can  hardly  be 
deduced.   The  situation  is  further  complicated  by  an  apparent 
conflict  of  opinion  as  to  the  validity  of  such  con+incts  as  passed 
upon  by  the  courts  of  different  states.    While  their  validity, 
■per  se,  would  seem  to  follow  from  the  general  law  allowing  free- 
dom of  contract  and  of  f  so  iation,  the  extent  to  which  the 
parties  thereto  can  go  will  be  limited  by  the  rule  tliat  no  one  can 
barter  away  his  own  freedom,  or  form  monopolistic  combina- 
tions or  other  contracts  in  violation  of  public  policy;  and  an 
agre&n^t  invc^ving  enforcement  by  means  of  fines  and  p«id- 

>  N.T.,  C.L.,  eb.  40.  Me.  380. 


386     L4W  or  nn  ncp&OTiaiiT  or  labob 


ties  of  A  ooereive  nature  will  b«  eomidwid  tm  vitiated  thereby.* 
Wbewthiwfan»^tlemp»toeoewthiidp>rttei,bowpmr,itteh 
partiflt  can  nake  ao  efliwUw  altadi  <»  a  eoOealhre  apMmmt, 
«fvw  though  ili  obnrnMee  by  the  partiM  to  H  magr  redtiee  tha 

opportunities  of  the  third  party  for  securing  employment,* 
since  the  freedom  of  contruct  enjoyed  by  individuals  extends 
to  them  in  conjunction  with  others  for  the  for  ation  of  united 
contracts  on  matters  of  <:ymiri'm  interest,'  Wht^-e  the  questi  n 
lies  between  a  labor  uniou  and  one  of  itu  members  who  is  un- 
wilUng  to  abide  by  the  tenna  of  his  agrasaBsiit,  the  rules  and 
procedure  of  the  union  offer  the  natural  md  asoally  the  only 
means  of  redress;  though,  as  already  statsd,  these  rates  must  aot 
interfere  with  the  legal  righta  either  of  the  employee  *  or  of  'he 
employer.'  But  it  must  be  a  party  in  interest  who  raises  the 
question  of  the  legality  of  the  contract ;  for  though  it  may  be 
invalid  and  unenforceable  as  overstepping  rules  of  public  policy, 
it  requires  more  than  a  mere  negative  showing  of  such  facts  to 
lead  to  the  intervention  oi  the  courts,  since  on  such  »  diowing  the 
law  takes  the  eontract  m  it  finds  it,  and  as  it  feds  it  leaves  it.* 
In  a  reeoit  ease  an  h^imeti<m  issued  afidnst  the  neiR^  deeted 
ofBoen  oi  a  ]$bot  orgaidsation  who  sought  to  incite  workmen  to 
strike  fat  violation  of  an  existing  eontraet,  thus  implying  that 

>  Delaware,  L.  A  W.  R.  Co.  ».  Switchmen's  Union.  158  Fed.  541 ;  Hopkins  r. 
Ozley  auvt  Co.,  83  Fed.  912,  28  CCA.  99;  HUton  •.  Eokenley,  0  EU.  A  Bl. 
47;  BoatiraUt.Mair.7lVt.  l,4aAtl.0O7:  MwlaBa.  Whte,1851ifa«.36S.e9 
N.E.  1085. 

*  National  Fireproofing  0>.  «.  Mason  Builders,  146  Fed.  200,  109  Fed.  269 
(CCA.). 

*  National  Prot«etiye  Ass'n.  t.  CwuBiat,  170  N.Y.  316. 63  N.B.  300. 
«  Brvnnan  t.  Hatters.  73  N.J.L.  719. 88  Atf.  188. 

*  WUIcut  &  Sons  Co.  t.  Bricklayws,  200  Mass.  110.  85  N.E.  897. 

*  NatioBal  Fireproofinc  Co.  t.  Maaon  Buiiders.  tupra.  aUaa  Brown  t.  Jaoobs' 
PhMMor  Co..  lU  Oa.  483. 41  aJL  so. 


TBkDm  AND  LABOft  AMOGiATIONB  387 


the  contrac  ould  be  fairly  Msui&ed  to  moum  to  tlM  employer 
valuable  nt&uis,  even  tikough  no  ivjunetioii  would  Imm  to  pf»> 
vent  the  workmen  tbeoMh  «  'mti  etriking.*  In  another  eaie, 
in  wfaieh  an  empk>y«r  wm  ^seddnf  to  prevent  a  strike  and  o£Fered 
in  eyidiBee  a  contract  with  he  union,  it  waa  held  that  union 
officials  could  not  be  enjoined  from  counadfaog  with  the  members 
of  their  uniom  when  no  strike  uld  '.e  place  without  the 
favorable  ott  'the  u.  vbers  th^"!  A\^6;*  and  in  subsequent 
ho  ings  in  thv.  Barnes  c;  ^,  th  in  ref-  ^ed  to  prevent  union 
offidals  frc  m  cou  iseling  \  ith  or  i  ing  'laefita  to  striking  em- 
ployees.* The  validity  of  a  «tr  -^t  aen  a;  employer  and 
a  union  was  tt^eld  by  a  li  Hctod  beach  wMrethe  point  invdved 
was  tin  eefieetitw  }f  a  nc^  vm  hf  tiw  employer  to  guarantee 
his  obr  rvanc  'he  tc-  m  of  the  agreement;*  and  a  federal 
court  directet  he  ct  of  a  railroad  under  its  care  to  make 
ai.  "appror'"»ate  on  ct  "  with  an  organization  of  railroaf' 
employe''^  u  the  subj^  t,  of  the  conditions  of  employment  of  ^ 
Dt«)mben. 

On  ^  irounr^  ti  -    oe  cuatraet  did  not  call  fw  the  «nplo^ 
BMsk  of  partleui  -  u  avichials,  but  only  (rf  individuals  of  a  cer- 
tau  eiasB,  it  ba      ^  hsid  that  the  acts  td  emfrfoyers  and  emr 

U  eesii*  nnmAtjigiDdividualMmtracts  could  not  be  reviewed 
tt^!-  the  Mnsttos  aooUective  contract*  It  has  also  been  held 

>i>  ~<w*Co.  «.BaR7.  lMFad.73. 
'  D»    are,  I     W  R.  Co.  •.  Switchmen's  Unioa,  nupm. 
167  ^^ed.         iS   ad.  226,  M  CCA.  601. 

Jk  M9.Ca.    .  laS  N.Y.  3Sr,  n  N  J.  S  ("a  wgttrtto  fcahioB."  41  Am. 

L.  Bmr.  208). 

•WstathouM  t.  Conor,  85  Vad.  149  (bat  oowtomning  and  cUmiastiiic  om 

rule). 

•BuiMtta  f.  MandiM  Coid  Co.,  180  Mo.  241, 79  S.W.  130;  Bwiim  A  Co. «. 
B«iy,UTF«d.88S:  JMsinn,  L.  *  W.  B.  Oe. «.  MtahMft's  UaloB.  Miyra. 


238       LAW  OF  THE  EMPLOTMSNT  OF  LABOR 


that  such  aa  agreemoit  is  not  adequate  to  overoome  the  qiecific 
provisions  of  contracts  made  directly  between  employers  and 
employees ;  ^  and  a  court  refused  to  read  into  individual  con- 
tracts with  workmen  the  provisions  of  a  contract  with  the  union 
to  which  the  men  belonged,  on  the  grotmd  that  the  imion  was 
incompetent  to  contract  for  its  individual  members ;  *  nor  will 
an  action  for  damages  lie  against  an  unincorporated  union  as  a 
union  for  the  breach  of  a  contract  made  by  it  on  behalf  of  its 
members,  since  it  is  not  a  kgial  person.  The  court  declined  to 
ocmaderwhat  would  have  been  Uie  result  if  the  action  had  been 
broui^t  against  individual  membns.  It  went  so  far  as  to  say, 
however,  that  if  the  members  were  in  any  way  liable  on  the 
contracts  of  the  association,  the  liability  would  rest  on  the  doc- 
trine of  principal  and  agent  and  not  on  that  of  partnership, 
since  the  association  had  not  at  all  the  nature  of  a  business 
enterprise  and  could  not  contract  as  such. 

It  is  not  easy  to  see,  on  what  grounds  actions  could  be  brought 
against  mdividuab  under  a  contract  the  terms  <d  iriiich  wne  not 
allowed  to  affect  the  conditions  (tf  tiidr  onployment.  The 
better  view  seems  to  be  that  of  a  case  in  which  it  was  said  that 
in  sc  far  as  there  was  any  real  contract  it  must  have  been  be- 
tween individual  members  of  the  respective  organizations.'  In 
this  case  the  formal  parties  to  the  contract  were  the  represen- 
tatives of  certain  employers'  and  employees'  associations  respec- 
tively, and  the  court  held  that  while  the  resultant  ccmtraot  was 
in  form  between  two  international  aaaoeia^ms,  there  were  m 
reality  separate  contracts  between  oni^oyers  and  mployees 

>  LancmKde  *.  Olean  Brawing  Co.,  121  N.YA  888. 

*  Burnetta    MareetiiM  Coal  Co.,  mtpn, 

•  B«mM  *  Co.  f .  Bwtjr,  IM  fM.  SSS,  M  C.C JL  Ml. 


TRADE  AND  LABOR  ASSOCIATIONS  239 


who  were  members  of  the  various  organizations;  "or  rather, 
that  the  provisions  of  the  contract,  upon  its  being  entered  into, 
became  terms  of  the  separate  contracts  of  employment  between 
each  member  of  the  Typothetse  [the  employer's  association]  and 
the  members  of  the  union  in  his  employ." 

The  value  (tf  an  agreonent  of  the  sort  under  conmdera- 
ti(m  is  deariy  very  doubtful  The  monl  eSeet  has  been  widdy 
recogmied,  bu^i  the  incorporation  of  penalty  providons  adds 
little  to  that  effect,  since  an  inquiry  into  all  the  provisions  and 
tendencies  of  such  agreements  has  generally  resulted  in  disclosing 
conditions  with  which  the  courts  refuse  to  meddle ;  while  the 
general  rule  of  the  imenforceability  of  labor  contracts  and  the 
inequality  of  status  that  would  result  from  binding  an  employer 
when  the  employee  is  fxe^  to  abandon  service,  are  obstacles  to 
the  granting  of  l^;al  or  equitable  validity  thoreto.  While  an 
emptoy«r  is  at  liberty  to  discharge  a  wwlanan  objeetionaUe  to 
the  union  without  incurring  liability  to  him  for  the  act,  the 
eristmce  of  such  an  agreement  is  no  defense  for  the  union  in 
ouses  where  it  procures  such  discharge  with  no  other  justification 
than  it  purposed  to  prociu-e  his  discharge  as  a  punishment  for 
his  failure  to  make  application  for  membership  in  the  union.' 
If,  however,  he  incurs  suspension  from  his  union,  the  agreement 
therewith  for  the  exdurive  employmmt  of  members  in  good 
staadmg  is  suffident  warrant  tcft  his  discharge,*  and  the  assodaF 
tioQ  would  not  be  in  any  way  liable  in  damages  for  procuring  his 
discharge  if  his  suspmrion  was  effected  with  proper  regard  for 
tlM  by-iaws  of  the  association.  It  is  not  easy  to  conceive  that 
a  court  of  equity  would  order  an  employer  who  had  contracted 

>  B«ny  V.  DoDOT«a.  tS8  Mwt.  S53, 74  N.E.  603 :  Curran  v.  Oalen.  16S  N.T. 
as.  48  N.E.  287.  t  Sohuo  t.  Lemteiii.  131  N.YiL  851. 


240        LAW  OF  THE  EMPLOYMENT  OF  LABOR 


to  employ  only  union  men,  to  discharge  a  *ionunion  workman 
whom  he  had  retained  in  violation  of  the  terms  of  his  agreement, 
or  to  hire  union  workmen  furnished  him  by  union  officials, 
regardless  of  his  opinion  of  their  fitness.  It  would  follow  that  a 
court  of  law  would  not  enforoe  the  payment '  note  or  other 
frarfeitiire  oonditi«Mwd  on  the  dbnmuiee  of  c.  itract  <rf  this 
BOTt;  and  the  iNqrment  ci  a  fiae  hy  an  empb^  ^  o  wfetie  a  dis- 
pute fdlowing  the  alleged  yiolatioa  ot  a  collective  agreement  is 
not  conclusive,  since  the  employer  may  be  able  to  show  to  the 
jury  in  an  action  to  recover  the  fine  that  there  was  coercion  to 
prociire  its  payment,  so  that  recovery  thereof  may  be  allowed.^ 

The  steps  that  the  parties  themselves  may  take  or  the  extent 
to  which  they  may  go  in  the  way  of  strikes,  lockouts,  and  boy- 
ootts  fw  the  proeur«n«it  ct  etdotouaukt  of  cdlective  agree- 
ments will  reoGve  oduidention  in  other  seetiooa. 

SacnoN  115.  Tk$  CUmd  Shop.  —  The  edkethre  agreement 
usually  onhodies  a  ao-ealled  (^Med  shop  provision,  restrictmg 
employment  to  members  of  the  contracting  labor  organizations 
or  of  bodies  affiliated  therewith,  or  to  persons  not  "objection- 
able to  the  union  from  any  cause." '  If  it  relates  to  employment 
on  public  works,  such  provision  is  condemned  with  practical 
uniformity,  as  making  an  unlawful  diacrimi  nation,  tiding  to 
create  msmaipdf  by  the  reatiktkm  <tf  oonqH^tititm,  and  toiding 
abo  to  inereaae  the  eoet  of  the  work,  iriiioh  is  agaiiuA  public 
policy  and  not  within  the  power  of  the  eontraetiag  board  or 

>  Burke  t .  Fay,  128  Mo.  App.  690, 107  S.W.  408,  dtinc  Caraw  f .  Rutherford, 
106  MsM.  1,  8  Am.  Rep.  287;  Mareht.  BTieUajren'  ete..  Union. 79 Cobb.  7, 63 
Atl.  391.  The  opporiU  view  waa  takao  Ib  Jaeofaa  t.  CohaB,  Mum;  aaa  alw 
Hmh  f.  Halpem,  114  N.Y.  Sapp.  16S,  Ib  wUA  U  waa  kald  that  miA  a  aoto  waa 
BOl  void  for  want  of  eonaideration. 

•  Banjr  f.  OoaoraB.  188  Maaa.  S5S,  74  N.S.  60S. 


TRADE  AND  LABOR  ASSOCIATIONS  241 


officials.^  There  is  a  distinction  allowed  between  public  and 
private  employment  in  this  respect,  as  was  brought  out  in  the 
Toole  case,  cited  above,  in  which  the  court  said  that  "a  contract 
between  private  persons  may  provide  that  it  shall  cease  to  be 
oUigatoiy  or  be  vwd  if  dther  party  to  it  shall  employ  nonunion 
men,  and  the  law  will  p«rmit  the  {ffoviaions  to  have  full  force; 
and  80  with  an  inhitMtkm  against  the  hiring  uni<m  mm  and 
witii  all  other  stipulstkmB  which  are  not  impossible  of  perform- 
ance, not  inmioral,  nor  contrary  to  public  policy."  On  this 
view  a  contract  with  an  employer  to  retain  in  his  service  only 
members  of  the  union  which  is  party  to  the  agreement  is  valid, 
so  that  no  injimction  against  the  discharge  of  nonunion  mem- 
bers would  lie ;  *  and  indeed  to  hold  otherwise  would  be  to  claim 
tor  the  oourts  the  power  of  siqMrvising  the  eonduet  oi  employers 

>  SUto  f .  Toole,  20  Mont.  22, 86  Pms.  496 ;  Adwu  w.  Braman,  177  m.  194, 62 
N.E.  314;  Lewia  *.  Board,  139  Mich.  306,  102  N.W.  766;  Atianta  t.  Stein,  111 
Otk  789. 36  SJB.  932 ;  ManhaU  ft  Brace  Co. «.  Nadiville.  109  Temt.  496, 71  S.W. 
816.  la  tfaia  OMiaaetMi  may  be  noted  the  raliag  of  a»  VM.  Safrioe 
CommiMion  and  the  declarations  of  President  Roosevdt  in  a  case  involving  the 
lil^ts  of  employees  in  the  Government  Printinc  Office.  William  A.  Miller,  a 
bookfafaMiw,  mm  expelled  from  his  union,  and,  upon  notice  to  the  Public  Printer, 
was  dischaned  from  his  employment  because  of  such  expulsion.  On  appeal 
to  the  Civil  Service  Commission,  his  reinstatement  was  requested,  since  "the 
Commisskm  doea  not  eonaider  expulsion  from  a  labor  union,  being  the  action  of 
a  body  in  no  wayeeaaeetad  with  the  public  sarvioe  nor  having  authority  over 
public  emplojrees,  to  be  such  a  esose  as  will  promote  the  eOdeaey  of  the  pubUo 
service."  President  Roosevdt  thereupon  ordered  reinstatement,  saying, 
"T^Mf  is  no  objection  to  the  employees  of  the  Government  Printing  Office 
BOMtltHtlng  thenmlvea  into  a  union  if  they  so  dsstre ;  but  do  rules  or  resolutions 
of  that  union  can  be  permitted  to  override  the  laws  of  the  United  States ;"  and 
again,  "In  the  employment  and  dismissal  of  men  in  the  government  service,  I 
can  no  more  neor  '  the  fact  that  a  man  does  or  does  not  belong  to  a  union  as 
biing  for  or  ag^-  '.  <  '  tn  than  I  can  leeogniae  the  .aet  that  he  ia  a  Proteetant  or 
CathoUe,  a  Jei»  Oentfle,  as  being  for  or  againat  Um."  TusuUeUi  Bm^ 
U.8.C.S.  Com.,  pp.  147-150. 

>  Mais  t.  Printing  Co..  91  N.Y.  Supp.  186, 99  App.  Div.  606. 

B 


242        LAW  OF  THB  EMFLOTMBNT  OF  LABOR 


and  employeeti  in  the  matter  of  the  termination  and  formation 
of  contracts  of  employment  to  an  extent  entirely  unwarranted 
(sec.  3.),  and  the  agreement  can  hardly  be  said  to  have  had 
weight  in  influencing  such  a  deciai<m.  A  different  ease  was 
presmted  whete  loeal  anodations  d  empiayen  and  mqdoyees 
had  oxtoed  into  an  agjewment  for  the  emphyiomt  <rf  members 
of  the  employees'  association  only,  and  a  discharfed  workman 
sued  to  recover  damages  for  the  loss  of  emplojrment.^  It  was 
held  that  such  a  contract  could  not  be  supported,  that  it  was  no 
defense  to  the  union  that  it  was  party  thereto,  and  that  the 
discharged  employee  could  recover  damages  from  the  union  for 
interfering  to  procure  his  discharge.  The  distinction  was  made 
by  the  judge  in  the  Mills  case  betweok  that  case  and  the  Curran 
etm  that  the  latter  was  an  attonpt  to  localise  a  plan  of  com- 
pelling workmen  not  in  affiliation  with  the  Mgamsation  to  join 
it  at  the  peril  being  deprived  of  their  employment.  It  was 
said  that  there  is  a  manifest  discrimination,  well  recognized, 
between  a  combination  of  workmen  to  secure  the  exclusive  em- 
ployment of  its  members  by  a  refusal  to  work  with  none  other, 
and  a  combination  whose  primary  object  is  to  procure  the  dis- 
charge of  an  outsider  and  his  deprivation  of  all  employment. 
In  the  first  case  the  aeti<m  oi  the  0(HnUnati<m  is  i»imaiily  for 
the  betterm«it  of  its  manbers;  in  the  second  case  such  action 
is  iMrimarily  "to  impoverish  and  crash  anothw  "  by  making  it 
impossible  for  him  to  work  there,  or,  so  far  as  may  be  possible, 
anywhere.  The  difference  is  that  which  exists  between  a  com- 
bination for  the  welfare  of  self  and  one  for  the  persecution  of 
another.  The  one  may  necessarily  but  incidentally  require  the 
discharge  of  an  outsider ;  the  primary  purpose  of  the  other  is 
>  Curnui  f .  Oaleo.  152  N.Y.  33. 46  N.E.  207. 


TRADE  AND  LABOR  ASSOCIATIONS  243 


sueh  discharge  and  his  exclusion  firam  labor  in  his  calling.  This 
reasoning  follows  closely  that  of  a  concurring  opinion  in  a  case  ^ 
in  which  the  method  of  procuring  the  closed  shop  was  by  strikes 
rather  than  by  means  of  contracts  with  employers,  and  which 
sustained  the  right  of  the  union  to  declare  strikes  in  order  to 
secure  such  an  aid,  so  that  the  discharged  workman  had  no 
redress.  The  legality  of  dosed  shop  contracts  has  been  uphdd 
in  o^hor  cases  on  the  ground  in  part  that  but  a  eingje  employer 
was  involved,  so  that  wmknm  man  not  compelled  to  jcnn  the 
union  in  order  to  procure  employment  in  the  locality,*  also  that 
the  contract  was  not  procured  by  duress,  nor  was  there  pressure 
exerted  "so  imperative  as  to  amount  to  compulsion"  to  procure 
the  discharge  of  nonunion  workmen.* 

WhUe  the  attitude  of  the  courts  of  New  York  may  therefore 
be  said  to  be  favoraUe  to  the  dosed  shop  agreement,  those  td 
Iffioois  seem  to  i»esent  a  contrary  view.  Thus  when  a  strike 
was  ordoed  for  the  purpose  of  eowang  an  emfrioyer  into  "g^ii^g 
such  a  contract,  it  was  said  that  the  attempt  to  thus  procure 
the  agreement  was  unlawful  as  violative  of  the  clear  legal  right 
of  the  company  and  unjust  and  oppressive  as  to  those  who  did 
not  belong  to  labor  organizations.^  Such  agreements  are  also 
said  to  be  unlawful  as  tending  to  monopoly  by  excluding  work- 

>  N»tional  Prot.  AsB'n.  ».  Cumming,  170  N.Y.  816, 834, 63  N.E.  800.  The 
present  writer  has  been  entirdy  unafals  to  dkoamt  the  diilfaMtfaMM  pointed  oat 
by  the  Jttdcee  between  the  Cumminc  caie  and  the  Curran  caae.  It  waa  in  evi- 
deaee  is  the  Camming  case  that  the  agent  of  the  union  declared  that  if  he  ever 
found  the  plaintiff  or  his  associates  on  a  job  in  New  York  or  vicinity,  a  strike 
would  be  oelled  fay  order  of  the  board  of  delegates;  that  he  would  not  allow 
than  to  woA  on  any  Job  envtB«BaD,dwv>  Job,  and  by  his  permission.  See 
dissenting  optete  eoaeoffsd  in  by  three  judges,  at  p.  336  of  170  N.Y.,  p.  376  of 

N.E.  I  Jaeobs  t.  Cohen.  188  N.Y.  287, 76  N A. 

*  Kissam  t.  Priatiag  Co..  199  N.Y.  76. 91  N.S.  S14. 

«  CBrisB  •.  Plwple,  219  U.  886, 7ft  NX  108. 


244        LAW  OP  THE  EMPLOYMENT  OF  LABOR 


nfif^  not  memboi  of  the  union.*  And  in  the  Massachusetts 
courts  damages  have  been  allowed  as  against  members  of  a  labor 
organization  procuring  the  discharge, .  ider  a  closed  shop  agree- 
ment, of  a  workman  not  belonging  to  the  union  which  was  party 
to  the  contract.*  The  ground  on  which  such  agreemoits  are 
upheld  is  that  they  are  beneficial  to  the  employer,  doing  away 
withdiqiutes;  that  thqrrqMreaoKttiMeqNPMBcm  of  the  interests 
of  the  workmen  seeking  employment  on  terms  and  under  con- 
ditionB  agreed  upon  among  themselves;  that  the  acts  of  work- 
men in  securing  and  enforcing  such  agreements  are  nothing  more 
than  trade  competition,  the  purpose  being  to  benefit  the  mem- 
bers of  the  union  by  securing  them  employment;  and  that  if 
such  is  the  purpose  of  the  agreement  and  the  acts  thereunder, 
and  not  primarily  to  injure  others,  the  agreemrat  is  defmrible 
as  a  omnpetitive  measure,  even  though  otheip  are  inddentally 
ckprived  of  emfkiymeiai  by  reason  thoectf.'  In  the  case, 
Berry  v.  Donovan,  dted  above,  it  was  hdd,  however,  that  an 
interference  by  a  combination  of  persons  to  obtain  the  discharge 
of  a  workman  because  he  refuses  to  comply  with  their  wishes, 
for  their  advantage,  in  some  matter  in  which  he  has  a  right  to 
act  independently,  is  not  competition.  "The  necessity  that  the 
pliuntifif  should  join  this  association  is  not  so  great,  nor  is  its 
relation  to  the  rights  ot  the  d^endants,  as  compared  with  the 
ri^t  at  tiie  i^aintiff  to  be  free  from  mdestaticm,  such  as  to 
bring  the  acts  <rf  the  (kfendants  under  the  shelter  of  trade 
o(Hnpetiti<m."  * 

•  ChrirtBimii  f.  FWpto.  114  10.  App.  40;  FolK>m  t.  Lewis,  (Mass.)  94  N.E. 
Sie.  1  Berry  •.  Donovan.  188  Mms.  8A3,  74  N.E.  603. 

*  National  Prot.  Aaa'n.  •.  Gumming,  «upra;  KiMam  t.  Printing  Co.,  fupra; 
National  Fireproofing  Co.  ».  Mason  Builders'  Ass'n.,  169  Fed.  259  (C.C.A.). 

«  FUat  t.  Woods,  176  Mass.  402, 67  N.E.  1011 ;  see  alao  Folacmi  t.  Lewis. 
tuprm. 


TRADE  AND  LABOR  ASSOCIATIONS 


Under  the  rules  laid  down  in  the  New  York  caMC^  an  associa- 
tion of  employers,  covering  practically  the  whole  of  a  line  of 
trade  in  a  locality,  cannot  direct  its  members  to  employ  only 
the  members  of  a  designated  labor  organization,  though  an 
individual  employer  might  have  such  an  arrangement ;  but  such 
a  restriction  <A  employment  would  result  from  the  action  of  a 
large  and  e(Hitrdling  nmninti<m  as  is  contrary  to  public 
pdksy.*  It  follows  that  a  bond  ipven  by  a  member  of  the 
association  to  secure  coH|diance  with  its  orders  is  not  breached 
by  a  refusal  to  comply  with  such  a  direction,  nor  can  any  pen- 
alty be  collected  on  account  of  such  refusal. 

Obviously  a  difficult  question  to  determine,  under  the  view 
holding  closed  shop  contracts  legal,  will  be  that  of  discovering 
when  the  agreement  is  merely  a  matter  of  trade  competition, 
devmd  of  malice,  aad  not  tending  to  monopoly ;  and  when  it  is 
■o  extensive  as  tolall  undor  the  ban  of  monopoly,  or  so  expres- 
Bve  fA  bad  motiv*  as  to  be  condemned  as  midicious.  No  agree- 
ment can  be  viewed  as  standing  on  the  same  footing  as  the  re- 
fusal of  an  individual  to  deal  with  another,  since  there  is  the 
original  necessity  of  numbers  to  originate  such  an  agreement; 
and  the  enforcement  of  it  is  by  way  of  penalty  on  both  members 
and  employers,  thus  restncting  their  free  choice,  so  that  the 
arrangement  falls  under  the  condemnation  of  all  undertakings 
1^  which  it  is  sou^t  to  compd  third  parties  to  purchase  the 
jffivikge  of  engaging  in  businesB  by  coooesrions  to  unauthorised 
and  unofficial  organiiations.'   The  siqureme  court  of  Con- 

>  McCord  ».  Thompaon-Stuntk  Co..  (N.T.)  BS  NJB.  1090.  aAnninc  118  N.Y. 
Supp.  386.  129  App.  Div.  130. 

*  Union  P.  R.  Co.  •.  Ruef,  120  Fed.  102 ;  Aikens  •.  Witooiuia,  lOS  U.&  194.  28 
Sup.  Ct  S ;  Bagmolda  ff.  Davto,  198  MMt.  294, 84  N.S.  457. 


246        LA^W  OF  THE  BMPLOTMINT  OF  LABOR 

nectknit  >  must,  however,  be  dted  as  ooantenaiiefaig  muk  afree- 
monts,  in  additkn  to  the  dtatkiu  alraady  giTen. 

Whichever  view  k  takea  of  the  agreements  as  such,  where  it 
appears  that  they  were  procured  by  threats  and  coercion  their 
validity  would  be  open  at  least  to  serious  question,  and  if  coer- 
cion were  proved,  they  would  be  voidable.*  Furthermore,  the 
courts  will  not  be  concluded  by  the  fact  that  the  original  agree- 
ment was  voluntary,  if  its  obMsrvanoe  is  found  to  be  i»oeured 
by  mewazeB  amottnting  to  ooarel<m  or  intimidetkm  by  reason 
of  which  tiie  eubeequent  freedtnn  of  dioioe  k  wrongfully  and 
illegal^  restrained.* 

The  effect  of  the  closed  shop  agreement  on  the  liability  of 
employers  for  injuries  to  employees  whose  selection  and  employ- 
ment is  r^pilated  by  such  agreements  has  ahready  been  noticed 
(sec.  96). 

SxcTioN  116.  The  Union  LaM.  —  One  of  the  methods  by 
n^iioh  labor  ovganiiatioos  undertake  to  strengthen  thdr  influ- 
ence and  to  emphanae  the  ben^ts  of  wganintkm  ia  by  the 
adopti<m  of  a  muk  or  labd,  acnnewhat  <rf  tiie  na^ue  of  a  trade- 
mark, the  inrivilege  <rf  the  use  of  which  is  restricted  to  manu- 
facturers who  comply  with  the  conditions  fixed  by  the  union 
adopting  the  label.  The  question  of  the  propriety  of  classing 
such  labels  with  trade-marks  turns  on  the  definition  of  the 
latter  term.  If  a  trade-mark  is  assumed  i  i  be  the  mark  of  a 
trader  or  manufacturer,  implying  that  tike  article  bearing  it  was 
made  or  uAA  by  him,  tim  tiie  rulea  of  law  i^q^fieaUe  to  trade- 

1  State  t.  StortJocd.  77  Cam.  8S7.  tt  AtL  Tee. 

t  Doramn  •.  Bmuhv.  17»  n.  eOB.  83  N JB.  9ai :  10  Aa.  4  IM..  3  Ed., 
p.  821. 

*  Maiteil  t.  WUte.  18S  Mmi.  MS.  6»  N  A  MM ;  BmrtmB  t.  Mnt^  n  Yt.  1. 43 
AlLWr. 


TBADl  AND  LABOR  A880CUTI0NS  247 


Btrin  do  nol  cactand  to  unkm  kbeb;  and  on  this  view  it  has 
bean  held  that  sucli  labels  cannot  be  proteeted,  since  they  do 
not  indicate  any  individual  manufacturer,  nor  "point  distinctly 
to  the  origin  or  ownership  of  the  article  to  which  applied."  '  In 
another  case  it  was  said  that  the  plamtiff  could  defend  no  special 
title  to  a  label,  smce  it  was  not  a  trader,  and  furthermore  beoauae 
the  words  of  the  label,  "oppoMd  to  inferior  rat-shop,  oooly, 
prison,  or  filthy  tenement  houae  workmaaahip/'  showed  a  pur- 
poae  to  ftigmatiae  all  wndanai  <rf  the  etaft  not  members  of  the 
mdon,  ao  that  equity  would  offer  no  redress  for  the  alleged 
grievances.*  On  the  ground  that  the  right  to  a  trade-mark  can 
not  exist  apart  from  a  business,  and  that  such  a  marlc  is  not 
itself  property,  the  officers  and  members  of  a  union  were  held 
not  to  be  entitled  to  an  injunction  restruning  the  unauthorized 
use  of  the  label  of  the  union.* 

The  Supreme  Court  of  the  United  States  defines  a  trade-mark 
as  a  device  to  indicate  "origin  or  ownership/'  and  this  would 
^ipear  to  be  broad  enough  to  cover  the  case  of  the  label  of  a 
union.  The  subject  has  been  made  a  matter  of  legislative  ac- 
tion in  nearly  all  of  the  states  of  the  Union,  provision  being  made 
for  the  registration  and  protection  of  the  label  adopted,  and  in 
many  cases  the  word, "  trade-mark  "  is  so  defined  as  to  include  the 
union  label.*  Apart  from  statute,  it  has  been  held  that  while 
such  a  label  is  not  a  trade-mark,  and  no  one  has  a  vendible 
interest  thodn,  but  (mly  a  ewlantait  ri|^t  to  use  it,  equity 
win  nevwtibeless  protect  a  oon^dainant  against  fraudulait  use 

*  Ciffff  Bfakm  t.  Conhaiin,  40  Ukm.  MS.  41  N.W.  94S. 

I  MoVey  «.  Brendd,  144  Pa.  St.  236,  22  AU.  912. 

*  Ween»  «.  Bnyton.  162  Mm*.  101,  26  N.E.  46. 

«CManOA.Moa.«W7-4B13:  lad.,  A.S..aeM.8eQ»-«0»; MMt..W.K.«fc.7a, 

MM.  7-14:  N.T..  ex..  ca.  IS.  MM.  la. 


248        LAW  OF  THB  EMFLOTMENT  OF  LABOR 


by  which  the  public  is  daoeived  and  the  rightful  \mn  an  mads 
to  miffer  pecuniary  loes.*  The  itatiitet  on  the  rabjeet  have 

been  generally  held  to  be  constitutional.*  In  the  Illinois  and 
Indiana  cases  cited,  Lae  same  label  was  under  consideration  as 
that  condemned  in  the  courts  of  Pennsylvania ;  •  but  it  was  said 
in  these  cases  that  the  language  was  not  an  attack,  but  was  de- 
fensive only.  In  some  cases  the  question  of  class  legislation 
was  raised,  but  the  oourta  ruled  that  the  aet  was  neither  local, 
imvate,  not  diseriminatmy,  but  merdy  allowed  a  leflltimate 
itatonent  as  to  tiie  olaaa  of  woriaoanship  employed.  Descrip- 
tive words  are  no  proper  part  ot  a  trade-mark,  but  thdr  use 
will  not  invalidate  an  otherwise  appropriate  mark.*  In  opposi- 
tion to  the  point  made  by  the  Massachusetts  court  in  the  case 
of  Weener  v.  Brajrton,  supra,  it  has  been  held  that  since  such  a 
label  is  a  symbol  of  the  reputation  of  the  goods  on  which  it  is 
placed,  it  acquhns  tito  ehanMter  of  property,  and  is  therefore  a 
valid  Mibject  of  legislatioiL*  An  international  label  was  held 
not  to  be  withhi  the  proteetkm  of  a  state  law  unless  it  was  af- 
firmatively shown  that  it  could  properly  be  r^pstered  there- 
under ;  •  and  the  form  of  any  label  for  which  the  protection  of 
the  law  is  sought  must  oonf <nrm  to  the  provisions  of  the  statute.' 

*  Canoa  ff.  Uqr.  S9  Fad.  777.  SMaboHattatoMat.  Powm,  103  Ky.  t3S,4l 

8.W.  180. 

»  Schmala  ».  Wooley,  67  N.J.  Eq.  303, 41  Atl.  030 ;  Tracy  t.  Bankw,  170  MaM. 
M6. 40  N.E.  308 ;  People  t.  FUbmr.  60  Hun.  662, 3  N.Y.  Supp.  786 ;  Perkina  ». 
Reert,  168  N.Y.  SOS,  58  N.E.  18 ;  State  t.  Bishop,  128  Mo.  373, 31 8,  W.  0 ;  Cohn 
».  People,  149  III.  486,  37  N.E.  60 ;  State  •.  Hafan,  6  lod.  Aw>  107. 8S  N.B.  323; 
SUte  ».  Montsomery,  67  Wash.  102, 106  Fao.  771. 

*  MeVey  * .  Braodel,  aupm. 

*  People  9.  Fiaher,  «upra. 

*  State  «.  Bishop,  lupra. 

*  SU^tff  V.  Hagan,  supra. 

*  Uwlor  *.  MeniU  *  Son,  78  CoMb  MO^  M  AtL  aaOl 


TRADE  AND  hAhOR  ASSOCIATIONS  249 


Tbe  UM  of  ft  label  not  identical  but  misleading  in  appearance 
on  a  casual  examination  is  a  violation  of  a  statute  prohibiting 
the  use  of  counterfeits  or  colorable  imitations,'  and  it  is  as  much 
an  offense  to  use  a  genuine  label  without  authority  as  to  use  an 
imitation  thereof.*  A  statute  prohibiting  the  use  of  a  label 
without  auih<Hrity,ortheu8e<rf  a  oounterfeit  label,  was  held  not 
to  make  knowledfe  an  ingredient  of  the  offense,  the  act  itself 
making  the  ma  liable ;  *  thoufl^  it  has  been  hdd  that  guilty 
knovdedge  must  be  shown,  since  nothing  will  be  taken  by  way 
of  intendment  in  the  enforcement  of  a  penal  statute/  The 
statutes  frequently  penalize  only  the  known  or  willful  violation 
of  the  law,  and  where  such  is  not  shown,  no  penalty  will  attach, 
and  circumstances  may  even  warrant  the  remission  of  costs  in 
the  issue  of  an  injunction  against  further  use  of  the  labd.*  A 
pnmnoa  in  a  statute  that  the  penalty  to  be  adjudged  against 
a  ykdalor  (rf  the  law  may  be  fixed  by  the  wnpliinant  asBoci»> 
tkm  and  1^  it  leooirned  in  an  aeti<m  f<Mr  debt  amounts  to  iuurp»- 
tion  of  the  judicial  function,  depriving  the  defendant  of  property 
without  due  process  of  law,  and  is  unconstitutional.' 

Under  this  head  may  be  mentioned  the  statutes  of  a  few 
states'  which  require  the  union  label  to  be  placed  on  public 
printing.  No  decision  of  a  court  seems  to  have  been  made  as 
to  the  con8tituti<mality  of  such  statutes,  thou^  they  would 
dbvi(Hisly  fall  under  the  same  oondraonatiaa  as  have  (odinanoea 

>  Myrup  «.  Friedman,  112  N.T.  8«vp.  1138. 

*  Trmey  t.  Banker,  wpra. 

•BwU*.  NOTTOMa,  Sl  N.T.  Bivp.  4M,  10  lOn.  4111. 

*  State    Bishop,  rupra. 

*  United  Oannent  Workers  t.  Davis,  (N  J.  Eq.)  74  Atl.  300. 

*  Cigar  Makers'  International  Union  v.  Goldbeis,  73  N JJ^  S14, 61  AIL  417. 

*  Mont.,  R.C.,  sec.  254 ;  Nev.,  C.L.,  sec.  1515. 


250 


LAW  OF  THE  EMPLOYMENT  OF  LIlBOR 


of  cities  to  the  same  effect.*  Such  laws  an  eondemned  as  class 
l^slation,  tending  to  the  promotion  of  monopolies,  and  leading 
to  unwarrantable  expenditure  of  the  public  funds,  even  where 
the  law  does  not  require  the  award  of  oontraots  to  the  lowest 
responsible  bidder. 

The  right  to  wcM  the  badge  of  >  labor  o»Kimi»tion  or  to  carry 
a  union  card  is  rssCrioted  to  actual  members  by  the  statutes  <A 
a  numbor  of  states.'   On  prindple,  such  statutes  would  seem 

to  fall  fairly  within  the  rule  as  to  the  right  of  the  union  label  to 
protection,  and  to  be  valid  as  preventing  fraud.  It  has  been 
held,  however  that  a  statute  forbidding  the  wearing  of  the 
badge  of  any  organization  except  as  permitted  or  provided  by 
the  constitution  and  by-laws  of  the  same '  was  unconstitutional 
as  delegated  legldation,  since  the  right  was  made  dependent  on 
other  than  a  public  law;  the  act  was  abo  hdd  vdd  as  disaim- 
inatory,  m  vkdation  ci  the  ptovisicms  of  the  f<KDteenth  aaend- 
n^t  of  the  federal  Ckmatitetieii.* 

Section  117.  RestneUve  ComkmaHona.  AnHinut  Laws.— 
Combinations  of  workmen  may  be  condemned,  or  at  least  set 
outside  of  the  protection  of  the  law,  on  the  ground  that  they  are 
in  restraint  of  trade.  Their  purpose  to  restrict  employment  to 
their  own  numbers  or  those  in  affiliation  with  them  operates  to 
exclude  nonmembos  from  employment ;  and  the  courts  will 
not  enforce  by  injunction  oe  otherwise  the  ocmtoaets  of  mem- 
bars  to  continue  as  such  or  to  obe«ve  the  rules  <rf  the  associa- 

•Hdden  t.  City  of  Alton,  179  HI.  318.  63  N.E.  866 ;  MarshaU  &  Bruce  Co. ». 
NadiTiUe,  100  Tenn.  405, 71  S.W.  815 ;  AtluiU  t.  Stoiii.  Ill  O*.  788. 36  S.E.  832 ; 
Mfller  t.  Caty  of  Dm  MoiiiM.  148  Iow»  400. 133  N.W.  236. 

*  Conn.,  Acta  1907,  ch.  113 ;  Ga.,  Acta  1880,  pi  78;  Mhi..  Aoti  1908,  dL  514. 
Met.  31, 32 ;  Minn  .  R.L.,  see.  5063,  etc. 

■  Moat.  Aoto  1907.  oh.  1& 

«  State  «.  BoBaad.  87  MoBt.  888.  OS  Fm.  719. 


TRADE  AND  LABOR  ASSOCIATIONS  261 

tfaa,  or  in  My  way  imtaatoe  tha  tMm  of  the  onintHtiaii  or 

of  a  member  (unless  property  rights  are  involvod),  on  the  pound 
that  such  judicial  sanotioQ  of  the  regulations  would  be  an  un- 
justifiable interference  with  the  freedom  of  contract  and  of 
trade.'  If  an  association  is  essentially  for  the  purpose  of  re- 
striction of  output  and  of  employment,  and  actively  operates 
to  impair  the  freedom  ■]  onployers  as  well  as  restricting  its 
OiWB membwi,  U  nuqr  bt  dasbaaded  at  Ulesal;'  or  an  injunction 
ma^  kmam  afufawt  a  eomfalBation  to  furfehw  a  ^ke  where  the 
object  ci  the  itrilBe  ia  to  miom  a  doaed-ahop  agreement.* 

In  some  cafle9  the  language  used  hi  the  cmimdatttion  of  oom- 
binations  woricmen  indicates  a  purpose  to  apply  the  same 
rules  to  them  as  to  business  agreements ;  *  though  in  others  a 
distinction  is  sharply  drawn,  the  right  of  laborers  and  profes- 
sional men  to  combine  to  fix  a  price  on  their  services  being  held 
lawftd  both  at  common  law  and  under  statutes  genorally.'  It 

I  O'B  -i«n  «.  Musical  M.  P.  &  B.  U.,  (  <    .J  £a.  52«,  M  Atl.  150. 
«  Kealtv  ».  Faulkner,  18  Ohio  8.  &  C.  P.  O.  i9« 

•  R^rwdda  *.  Davia.  198  Maia.  294, 84  tf.E.  467 ;  QHdiM  CopmL  Miaaa  Co. 
a.  OokUWd  Miaara'  Unfon.  189  Fed.  800. 

•  Lohae  Patent  Door  Co.  t.  Fuellc,  215  Mi.  421.1^4  8.W.  997. 

•  Bohtf  f .  Eaaamaier,  140  Iowa  182, 118  N.W.  270.  It  baa  baen  Mid  riHH  oMy 
tha*  "ao  far  aa  aeimomie  i»iiieiplea  an  eoncaraad.  and  ao  far  aa  eoaaidaimtiojj'i  of 
faimeas  and  justice  are  involved,  there  is  not  a  word  to  be  said  in  favor  of  aajr 
acheme  of  legislation  which  condemns  combinations  of  capital  and  a.i  the  aaiM 
time  encourages  combinations  of  labor."  (Eddy  C(»nl»nation»,  nnc  806.) 
Adoaittiag  the  poasibility  of  abuse  of  both  claascp  w  comlnnationa,  the  author 
quoted  aaaiiinwi  the  neoeadty  of  regulation,  both  ^upa  being  important  to  the 
welfare  of  society  and  the  one  demanding  the  other  as  ita  ewrdative.  Another 
writw  (Co^ay,  Strikea  asd  Loekouta)  leadiaa  tha  naa  eoaeluaion,  thou^  he 
Hya  that  the  employar  vadoobtadly  haa  tba  adyaatafe  becauae  he  haa  the  moat 
means,  which  ia  merely  "  tha  good  fortune  of  the  one  party  and  i  -  le  hard  luck  of  the 
other,  and  ia  not  tiie  tmM  a(  the  law."  The  actual  legislative  a  ttitude  haa  had 
■nmi  ■llwliuu,  boQk  aa  mwda  labor  otganliaHniia  In  paitjaulag  (aeo.  110).  aad  in 
nhtfoa  to  aapiagnd  paawa  in  ten— I  (aaea.  S  aikd^;  aad  wbOo  the  eoarta 


252        LAW  OF  THE  EMPLOYMENT  OF  LABOB 


afpem  to  be  the  rule,  however,  tiutt  iHiore  the  queetioii  is 
one  simply  of  the  rights  of  emidoyers  to  agree  on  the  terms  of 
the  labor  contract  and  the  personnel  of  their  employees,  there 
is  little  if  any  difference  between  their  rights  and  those  of  work- 
men. 

It  may  be  broadly  stated  that  "all  combinations  in  restraint 
of  trade  are  contrary  to  public  policy  and  illegal  untesB  they  are 
tor  the  reasonaUe  protecticm,  by  reasonable  and  lawful  means, 
(rf  parsons  dealing  legally  with  some  mibjeot  matto*  of  ocmtoast."  * 
Each  case  must  turn  on  its  conformity  or  nonconformity  with 
the  terms  of  the  above  rule,  and  protestations  of  innocent  pur- 
pose or  of  simple  obedience  to  the  rules  and  obligations  of  the 
association  must  be  weighed  against  the  actual  effects  of  the 
acts  done  and  the  reasonably  anticipated  consequences  of  rules 
of  the  nature  pleaded.  A  combination  of  hborers  to  prevent 
the  introduction  of  labor-Mvmg  machinery,*  w  to  secure  the 
emidoymoit  of  members  ci  the  union  only'  (though  many  of 
the  recent  cases  on  this  point  seem  to  turn  on  the  question  of 
methods  and  the  consequences  to  nonunion  workmen,  and  hold 
the  mere  purpose  of  securing  the  employment  of  fellow-members 
la^  ful),  or  to  compel  all  employees  of  several  employers  to  join 
a  particular  union,*  or  to  prevent  the  employment  of  others  to 

have  not  uniformly  reeogiuMd  the  eonstitutionmlity  of  difFerentiatiiis  atatutea, 
time  ia  at  leaat  room  for  effort  to  adjust  the  unequal  eeonomio  condition*  ad« 
mitted  by  the  autiior  laat  quoted  and  reeogniaed  in  numy  judicial  opiniona,  oa 
the  ground  that  it  ia  better  to  adapt  legal  and  economic  rule*  and  doetriBH  to 
t"'*'"g  facta  than  to  inaist  on  the  doetiines  and  ignora  the  f aeta. 

'  Oataow  f.  Buening,  lOS  WiB.  1. 81  N.W.  1008. 

»  Oxley  Stave  Co.  t.  Coopers'  International  Union,  72  Fed.  695. 

*  Elder  v.  Whiteaidea,  72  Fed.  72^ ;  Gataow  •.  Buening.  awpra ;  Curran  f. 
Qalen.  Ifi2  N.Y.  33,  40  N.E.  297. 

«  MeCwd  ff.  TboavKB-SMmtt  Co.,  IM  N.Y.  Swp.  IN. 


TRADB  AND  LABOR  ASSOCIATIONS  253 

take  the  place  of  woricmen  out  (m  strilEe,^  or  a  e(»nlHiiatioii  to 
pioeure  auidoyees  under  contract  to  quit  their  anjrioyment,' 
or,  in  general,  a  combination  coming  within  the  definition  given 
below  (sec.  118)  of  a  conspiracy,  is  unlawful. 

Legislation  directed  to  the  operation  of  business  agreements, 
commonly  known  as  antitrust  legislation,  is  found  in  many 
states  and  on  the  federal  statute  books.  As  noted  in  sec. 
Ill,  aaauB  oS  these  laws  eqireesly  exempt  labor  agreonents  firom 
thdr  ^pidicati<m.  A  law  jnohilMting  agreemmts  to  regolate 
the  iffice  oi  way  commodity  was  hdd  not  to  tapply  to  labmr,  the 
court  rejecting  the  view  that  labor  can  be  classed  as  a  com- 
modity, and  holding  further  that  combinations  to  advance  wages 
are  lawful.*  The  exception  as  to  labor  combinations  in  the 
antitrust  law  of  Nebraska  was  declared  unconstitutional  by  a 
federal  court;*  this  view  was  disapproved  by  the  supreme 
court  of  the  state,  howevrar,  the  law  bong  held  by  it  to  be 
y$M  as  esMcted.*  An  Dlinds  statute  that  aoMnded  the  aaU- 
toust  law  of  that  state  by  ooepting  wage  agreements  therefrom 
was  held  by  the  suprone  court  of  the  state  to  be  unccmstitu^ 
tional,*  on  the  ground  that  the  law  was  discriminatory,  citing 
a  similar  conclusion  of  the  Supreme  Court  of  the  United  States 
as  to  a  law  of  the  same  sort  making  exceptions  of  a  different 
nature.^ 

An  association  whose  by-laws  restrict  competition  in  bidding 

>  Union  P.  R.  Co.  «.  Ruef,  120  Fed.  102. 

*  Arthur  «.  Oakes,  63  Fed.  810, 11  C.CJL  aOB. 

*  BoUf  f .  KaMmeier,  tupn. 

*  Niagara  Tin  Inniranee  Co.  t.  Comdl,  110  Fed.  810. 

*  Cleland  •.  Anderaon,  66  Nebr.  252,  92  N.W.  306. 

•Paopleesrri.  Akuif.BttUer  St.  Foundry  Co..  159  01.848,  e«NJL  858.  Bm 
•Im  Eddjr  on  Comliiaatioaa,  nes.  811. 813. 

'  CowoBjr  f.       Co..  I8«  Uik  5«eb  18  Sop.  Ct.  481. 


254        LAW  OF  THE  KMPLOTMENT  OF  LABOR 


for  work  and  require  purehaseB  of  supplies  to  be  made  only  from 
dealers  who  conform  to  the  rules  of  the  association  is  in  restraint 
of  trade  and  violates  a  law  prob-biting  contracts  and  combina- 
tions to  prevent  or  destroy  full  and  free  competition  in  produc- 
tion.^ Any  member  of  a  combination,  if  acting  singly  and 
individually,  oould  lawfully  refuse  to  deal  with  any  person  or 
pmaoa  not  meeting  the  emiditioos  set  hy  him  for  his  enrtomers 
or  patrons,  and  no  law  which  would  infringe  upon  h»  freedom 
m  that  regard  would  be  valid;  but  an  aet  that  is  hannless 
when  done  by  one  may  become  a  public  wrong  throng  concert 
of  action,  and  may  be  prohibited  or  punished  as  a  conspiracy 
if  it  is  injurious  to  the  public  or  to  individuals  against  whom  it 
is  directed.*  The  fact  that  an  agreement  entered  into  by  sev- 
eral strips  them  of  their  own  freedom  of  action  as  individuals 
was  nmitioned  in  the  case  last  dted  as  a  furthw  warcMit  for 
hdding  the  oomfaination  to  be  eoe  in  rartnint  of  tnii  within 
tiie  purview  of  a  statute  prohibiting  eombinaiioM  ef  tint  na- 
tore ;  the  statute  was  also  held  to  be  nnnntitirtionsl 

The  federal  antitrust  act'  declares  illegal  "vnaey  eoBtract, 
O(»nbination  in  the  form  of  trust  or  otherwise,  or  conspiracy,  in 
restraint  of  trade  or  commerce,"  interstate  or  foreign.  This 
act  was  held  in  an  early  case  to  apply  to  combinations  of  laborers 
no  less  than  to  those  of  capitalists,  and  the  fact  that  the  origin 
and  gmoral  purposes  ol  a  eombfaiatioa  w«ra  iMKeMil  and  lawful 
in  no  wise  Issiaas  the  fflega^y  of  Mis  that  oCaad  i«MBst  the 
provnioas  <tf  the  statete.*  b  tide  eae  m  effort  to  seeam  the 

« Bmlcy  t.  Am'a.  of  Umktt  Plwliw.  IM  Tmta.  tt, « t.W.  Mt. 

•Orenads  Lumber  Co.  t.  MiMurippi,  217  UJ.  Ol^  Wt^^  Cl.  SS8;  citing 
CaUan    WilKS,  127  U.S.  665,  8  Sup.  Ct.  1301. 

•  Act  of  July  2, 1890,  28  Stat.  209,  Comp.  SUt.,  p.  8200. 

'UoitMl  Sti^  f.  Wnrtiiiwis't  Amd.  CowMi.  M  Fad.  9H;  Aftimed 
(C.aA.).<7IW.ai. 


TBADB  AND  LABOR  ASSOCIATIONS  256 


enqrfoyiiMot  of  none  but  union  men  by  the  interruption  of 
oouunnoe  by  viclent  means  was  held  to  be  a  restraint  of  trade 
within  the  meaning  of  the  act ;  so  also  of  a  boycott  against  a 
connecting  railway  line,  and  a  refusal  to  handle  its  cars  until  it 
should  come  to  terms  with  the  organization ;  *  and  an  injunc- 
tion will  properly  lie  against  officers  of  an  organization  who 
incite  strikes  in  f urthwanoe  of  a  purpose  condoamed  by  the 
aet.*  The  mibject  reodved  an  extmrive  discuwon  in  its  bear- 
ing on  the  sttbjeet  of  oombinaticms  ci  labor  in  the  case  just  cited. 
IMi  case  was  carried  to  the  Supreme  Court  and  there  affirmed,* 
not  on  the  grounds  of  a  violation  of  the  antitrust  law, 
but  on  the  broader  ground  of  the  control  of  the  national  gov- 
ernment over  the  transportation  of  the  mails. 

It  was  stated  in  the  opinion  in  the  above  case  that  there  was 
no  dissent  from  the  opinion  of  the  court  below  as  to  the  scope 
of  the  act,  bat  ti^a  declaration  was  not  understood  in  a  later 
eate  in  m  aMim  eourt  upiwkling  the  applicability  of  the 
Imp  to  a  «Me  m  wMA  eSorto  to  unioniie  a  factory  involved  the 
bofwtting  of  the  product  in  various  states  to  which  shipments 
INK  ciwtOToarily  made,  with  the  result  that  such  shipments 
weie  largely  reduced.  The  court  in  this  instance  held  that  the 
only  points  of  interference  were  the  diminished  sales  in  each 
loaJity  and  ihe  reduction  of  manufacture  locally,  neither  of 
which  were  matters  classifiable  as  interstate  comm^ve  and 
Mbjeet  t»  UAmti  eontnL*  The  Supreme  Court  of  the  United 
hammt  fiomiilfiriid  the  question  on  appeal,'  and  held 

i  WatariwiiM  t.  Comer.  55  Fed.  14». 

*  United  Statee  •.  Debs,  64  Fed.  724. 

t  In  M  Data.  158  UJS.  564. 16  Sup.  Ct.  900. 
« I«nn  w.  Uwior.  148  FML  924. 

*  aMM  eM*.  906  VJS.  374. »  S(9>  Ct.  301- 


256        LAW  OP  THE  EMPLOYMENT  OP  LABOR 


that  the  combmed  acts  had  for  their  purpose  an  interfenooe 
with  interstate  commerce,  that  labor  unions  are  in  no  wise 
exempt  from  the  strictures  placed  by  the  statute  on  combina- 
tions in  restraint  of  trade,  and  that  a  boycotting  of  goods  sold 
chiefly  in  other  ststes  than  that  of  manufacture,  for  the  purpose 
of  eoerdng  the  mwmfaeturer  into  an  apeement  with  the  union, 
was  repugnant  to  the  statute. 


CHAPTER  XII 


LABOB  DISFUm 

EtacnoN  118.  Conspiracies. —  The  old  common-law  doctrine 
of  conspiracy,  which  was  by  statute  made  to  cover  all  labor 
combinations  in  Great  Britain  until  within  the  past  century,  is 
frequently  invoked  to  meet  cases  in  which  combinations  are 
formed  that  are  regarded  as  unduly  interfering  with  businesd 
or  property  interests.  Of  practically  the  same  nature  and  eflfect 
are  oortMn  prohibited  combinations,  not  designated  as  eoa- 
qnrades,  for  the  purpose  of  "willfully  or  malidously  injuring 
another  in  reputation,  trade,  buaness,  or  profession,  by  any 
means  whatever."  ^  It  has  been  i  -^peatedly  declared  that  what 
(me  may  lawfully  do  alone,  man3  may  do  in  combination;' 
though  the  better  view  is  against  the  correctness  of  this  asser- 
tion, unless  properly  qualified ; '  but  in  general  the  fact  of  com- 
bination does  not  of  itself  suggest  illegality. 

A  conspiracy,  however,  is  essoatially  illegal,  heang  most 
o(Hniw»Uy  defined  as  a  omnbinaUon  of  two  or  more  persons  to 

>  Wis.,  A.S.  sec.  4466a. 

*Bohn  Mfg.  Co.  t.  Hollis,  54  Minn.  223,  55  N.W.  119;  Lindsay  t.  MonUtW 
Fadmtion  of  Labor.  37  Mont.  264, 06  Pao.  127;  Nattoaat  Protective  Ass'n.  «. 
Gumming,  170  N.Y.  315, 63  N.E.  369 ;  Cooke,  ComUnations,  Monopolies, 
and  Labor  Unions,  sec.  16. 

*  Aikeoa  t.  WiMooaiD,  196  U.S.  194,  25  Sup.  Ct.  3 ;  Arthur  •.  Oakes,  63  Fed. 
SIO,  11  CCA.  aOO;  Buck's  Stove  A  Raaie  Co.  t.  American  Federatkm  of 
Labor,  35  Wash.  L.  Rep.  797. 70  Alb.  L.J.  8 ;  Pickett «.  Walsh.  192  Mass.  673. 78 
N.E.  763 :  Lohse  Patent  Door  Co.  ».  Fuelle,  215  Mo.  421,  114  S.W.  997. 
■  257 


258 


LAW  OP  THE  EMPLOYMENT  OP  LABOR 


perform  an  illegal  act,  or  effect  an  illegal  purpose,  or  to  accom- 
plish some  purpose  not  in  itself  criminal  or  unlawful  by  criminal 
or  unlawful  means ;  and  a  conspiracy  to  commit  an  offense  may 
be  more  severely  punished  than  the  offense  itself,  under  pro- 
vision of  statute.*  Hie  matt«r  <rf  d^mtion  and  penalty  may 
be  regulated  by  statute,  «nd  sevwal  ststes  have  provisions  de- 
claring that  labor  agreements  are  not  conq>iracie8;*  though 
such  laws  do  not  legalise  the  class  of  conduct  embraced  in  the 
definition  given  above,  and  where  there  is  a  malieious  or  cor- 
rupt agreement  to  deprive  another  of  liis  liberty  or  property, 
the  law  has  been  violated,  regardless  of  these  statutes ;  *  nor 
does  the  fact  that  a  state  has  a  statute  on  the  subject  of  conspir- 
acy prevent  common  law  actions  in  cases  not  falling  within  the 
purview  (rf  the  statute.* 

CkmqMracies  are  classed  as  dvil  and  criudnal,  the  former 
fiving  rise  to  liability  in  damages  to  the  person  injured  thereby, 
and  the  latter  being  punishable  by  the  state  as  for  any  other 
offense.  In  criminal  conspiracies  the  offense  consists  in  the 
combination,  and  punishment  will  follow  the  proof  of  the  con- 
spiracy without  regard  to  the  attainment  of  its  ends,  since  the 
law  regards  the  act  of  unlawful  combination  and  confederacy 
as  dangerous  in  itself  to  the  peace  and  welfare  of  society;  *  while 
in  civil  conq>iraeies  some  damage  to  the  complaining  party 
must  be  shown.  Any  party  tl^reto  is  liaUe  fw  the  conse- 

»  Clune  ».  United  States.  159  U.S,  590.  16  Sup.  Ct.  125. 

•  Cal..  Sima'  Pen.  Code,  p.  581 ;  Md.,  P.  O.  L..  Art  37.  no.  38 ;  Mian..  R.I.., 
tee.  4868 ;  N.Y..  C.  L.,  oh.  40,  see.  682,  ete. 

*  State  r.  Glidden,  55  Conn.  46, 8  Atl.  890 ;  Looka  t.  ClotUaf  COMwi,  77  Md. 
896,  26  AU.  505 ;  Arthur  «.  Oakea,  ntpra. 

♦  State  ».  Dsltoii,  134  Mo.  App.  M7, 114  8.W.  11S3. 

•  United  dtates  v.  Cuddy,  07  IW.  SW;  Qum  «.  U^td  8Mh,  mtpra; 
Arthur  «.  Oakes,  cupra. 


LABOR  DISPUTES 


258 


quflooee  ci  unlawful  combinations,  thoai^  be  penKmally  may 
not  haye  participated  in  the  perfonnance  of  the  acts  leading  up 
to  them ;  *  or  even  though  no  act  whatever  was  done,  if  the 
conspiracy  was  criminal.'  The  fact  that  a  civil  recovery  has 
been  had  is  no  bar  to  criminal  proceedings,  and  vice  versa.* 

Tbe  Btatutee  ci  a  number  oS  states  require  the  performance  of 
an  overt  aet  to  eetaUish  eriminal  liatnlity,  but  the  pof  ormanoe 
d  that  aet  may  still  entail  lial»lity  upm  all,^  and  the  aet  itself 
need  not  be  criminal  if  the  ooDBfancy  was  so  and  the  act  shows 
a  purpose  of  carrying  it  out.* 

No  conspiracy  can  exist  without  more  parties  than  one,  so 
that  a  judgment  for  damages  agunst  one  party  to  an  alleged 
conspiracy,  the  other  parties  being  cleared  of  the  charge,  is 
self-contradictory.*  One  need  not  be  an  original  conspirator 
to  beeome  liable  as  sodi  if  he  makes  himsdf  party  to  a  con- 
qiiraey  with  knowiedce  of  the  ohanuster  of  its  aots  and  purposes 
(Mr  <rf  thdr  reascmaUe  tendmcy,'  and  the  innoomt  and  lawful 
act  of  combining  for  mutual  benefit  passes  into  indictable  con- 
spiracy when  threats,  intimidation,  and  violence  are  adopted  as 
means  of  enforcing  the  demands  of  the  associates  on  employers 
or  third  persons.  Inasmuch  as  any  conspiracy  charged  will 
usually  operate  in  one  or  more  of  the  methods  commonly  em- 
jAoyod  \jy  combinations  in  the  prosecution  of  their  ends,  the 
subject  will  recur  under  the  several  topics,  as  strikes,  boycotts, 
picketing,  UaeUisting,  ete. 

I  ToMo,  ate.,  R.  Co.  t.  PuuwylTUiia  Co.,  S4  FM.  780. 

*  Artlnir  *.  Oakea,  tupra;  State  t.  Buchanan,  5  Har.  ft  J.  (Md.)  317. 

*  Stoto  f.  Dalton,  tupra;  UnderhiU  v.  Murphy,  117  Ky.  640,  78  S.W.  482. 

*  U.S.,  R.S.,  MO.  6440.   See  Toledo,  eto.,  R.  Co.  fl.  PuuujrlTania  Co.,  tupn. 

*  United  States  t .  Qoidon,  22  Fed.  2fiO. 

*  St.  Look  8.  W.  R.  Co.  t.  Thompwn,  102  Tex.  89,  113  S.W.  144. 

'  Conkey  •.  RubmU,  111  Fed.  417 ;  ex  partf  Richards.  117  Fad.  SSS;  CMldiaid 
CodmI.  Mines  Co.  s.  Miners'  Union,  159  Fed.  500. 


280        LAW  OF  THE  EMPLOYMENT  OF  LABOR 

The  Statutes  deduing  that  labor  agreements  as  to  the  con- 
ditions of  onployment  are  not  conspiracies  may  contain  the 
specific  provision  that  the  statute  is  to  be  construed  as  applying 
only  to  the  combinations  in  question,  and  do  not  authorise  the 
use  of  force  or  violence  or  threats  thereof ; '  or  they  may  merely 
state  that  the  orderly  and  peaceable  assemUing  and  oodpora- 
tion  of  wt^OBien  fm  seeuring  <»r  maintaining  deored  ooiditions 
Isnataocrnqrinoy;*  nor  is  a  refusal  to  f dkming  luoh  an 
agreement,  with  the  adopticm  and  use  <rf  means  to  make  the 
agreement  effective.* 

While  these  statutes,  therefore,  have  the  obvious  intent  of 
declaring  such  agreements  lawful,  they  do  not  permit  any  vio- 
lent or  coercive  action,  and  if  they  attempted  to  do  so,  they 
would  be  unconstitutional  and  void  as  putting  certain  persons 
above  and  beyond  a  salutary  law  that  governs  all  others ;  *  and 
while  they  prevent  the  prosecution  as  oonqrimtcffs  of  those  in 
eombmation,  they  do  not  take  away  the  rif^t  oi  any  Individual 
injured  by  the  oomtHnati<m  to  sue  the  responsible  parties  to 
recover  damages.*  The  statute  may  itself  provide  (as  in  the 
Pennsylvania  law  cited  above)  that  it  does  not  prevent  the 
prosecution  and  punishment,  under  any  other  law  than  that  of 
conspiracy,  of  persons  who,  by  force,  threats,  or  menace,  hinder 
any  one  from  working  as  he  may  desire ;  it  would  seem,  how- 
ever, that  such  a  provision  is  supe:rfluxHi8,  sinoe  the  use  of  the 
means  indicated  would  doubtless  take  the  agreonent  out  from 
under  the  protection  of  the  statute. 

>  Cti.,  Pan.  Code,  p.  881 ;  Colo.,  AJ3.,  Me.  1295. 

*  Minn..  R.L.,  sec.  4808 ;  N.  Dak.,  R.C.,  aeo.  8770. 

•  N.J.,  G.S..  p.  2344,  sec.  23 ;  Pa.,  B.  P.  Dig.,  p.  484.  MeiL  73. 78. 

*  Goldberg  v.  Stablemen's  Union,  140  Cal.  429,  80  FM.  408. 

•  nsnk  f .  Herold.  03  NX  £q.  443.  «2  AU.  1&2. 


LABOR  DI8PUTB8 


261 


Of  ft  iome«rihat  different  intent  ara  lawi  pfdiiUt^ 
apdoet  woridngmea  eo    to  i»«v«it  enplosmMnt  by  intimUst* 
ing  them,  or  by  taldng  aw»y  or  hiding  their  tools;  or  by  ooer^* 

ing  or  threatening  employers  so  as  to  lead  to  their  discharge  or 
nonemployment.'  These  statutes  can  hardly  be  said  to  do 
anything  more  than  to  declare  the  oommon  law  in  ita  aiq;dioi^ 
tion  to  special  classes  of  persons. 

SiCTiON  119.  S^riket.  —  A  strike  may  be  defined  as  a  pre- 
eonoerted  Donation  of  work  by  employees.  As  it  is  usually  for 
the  purpose  of  procuring  some  noneession  fn»n  the  employer, 
tile  statement  that  it  is  tax  such  purpose  is  frequent^  madg  a 
part  of  the  definition.'  Inasmuch  as  every  man  has  a  rif^t  to 
leave  service  at  pleasure,  with  liability  m  damages  only  if  a 
contract  is  violated,*  and  without  regard  to  reason  or  motive,* 
it  has  been  held  that  strikes  are  per  «e  legal ;  *  and  while  this 
rule  may  be  accepted  as  generally  correct,  it  must  be  with  the 
understanding  that  neithw  the  purpose  nor  the  method  of  the 
sbike  is  unlawful.  Itisobviousthatif  askikeukvolvednothmg 
more  tiian  the  mere  cessation  of  employment,  initiated  vdun^ 
tarily  by  the  workmen  and  so  continued,  leaving  the  emjioyv 
and  tiiird  peanom  free  to  such  course  of  conduct  as  they  might 

>FIa.,  Q.S..  see.  3515;  Minn..  RJ..,  mo.  4887;  Wm.,  Coda.  no.  lOM; 
N.Y..  C.  L..  eh.  40,  mo.  680. 

*  For  kAdtordiMaaitoo  of  deflidtioiia  Me  Mutiii,  The  Modern  Law  ^  Trade 
Uaiona.  aec.  25. 

•  Pickett  ».  Wal«h,  102  Mass.  672.  78  N.E.  763.  The  aboenoe  of  co^raota 
for  a  fixed  period  ia  awumed  throoiiioat  thii  (Wimi«inii.  unleee  the  point  la 
■pacifically  mentioned. 

«  Booth  t.  Burgeaa,  72  N.J.  Eq,  181,  06  Atl.  231 ;  Raycroft  ».  Taintor,  08  Vt. 
219,  35  Atl.  53 ;  National  Pro*.  Ah'd.  t.  CoauB^  170  N.T.  816, 68  N.B.  808; 
Cooley.  Torta,  p.  278. 

■UniimP.  R.Co.a.  Roef.  laOVed.  102;  Allia-Chalmers  Co.  «.  Iron  Moldere' 
Uaiaii.10Orod.15S:  National  Ftat.  Am'h.  a.  Coraiaft  Myra. 


962        LAW  OF  THE  EMPLOTMINT  OF  LABOR 

choose,  numy  of  the  questions  usually  involved  would  not  arise. 
No  writ  can  issue  to  compel  former  employees  to  return  to  work, 
any  more  than  can  an  order  directing  employers  to  ntaikato 
discharged  workman.  Such  a  itntttei,  tli«fow,  nwd  dalm 
no  further  notiee. 

While  the  motive  or  parpose  of  the  act  of  a  single  individual 
quittins  work  would  not  be  made  the  subject  of  judicial  inquiry, 
the  fact  of  the  concert  of  action  of  a  number,  if  followed  by  dam- 
age, gives  room  for  inquiry  into  the  methods  by  which  such 
concert  was  procured  and  maintained,  as  weU  as  into  the  ends 
in  view,*  and  if  these  are  shown  to  involve  ooerdon  or  intimidar 
tion,  or  an  improper  interforenoe  with  the  ri^  of  iwfividuals, 
employen  or  employees,  or  of  the  public  at  large,  the  necessity 
for  kfia  or  equitable  intervention  may  appear.*  If  the  object 
is  the  benefit  of  the  members  of  the  organisation,  the  fact  that 
incidental  injury  to  others  results  creates  no  liability ; »  but  if 
injury  is  the  primary  motive,  and  the  possible  benefit  accruing 
to  the  members  is  remote  and  indirect,  the  strike  wiU  be  de- 
nounced as  illegal.*  And  even  where  an  anticipated  beneficial 
result  is  offered  as  a  defense,  the  courts  will  not  allow  the  per- 
petration of  a  wrong,  since  "no  conduct  hae  such  an  absolute 
privilege  as  to  justify  aU  possible  schemes  of  which  it  may  be  a 
part;      nor  do  statutes  legalising  labor  combinations  and 

I  Aikena  ».  Wiaconsiii,  19i  VA  194.  28  Sup.  Ct.  3. 

«  Plant  Woo<ta.  176  hUm.  492. 87  N.E.  1011 :  Breniun  t.  Hattera.  73  N.J.  L. 
729, 68  Atl.  166 ;  AUto^Chalawn  CSo.  t.  Iron  Motden*  Vvkn,  nipra. 

•  National  Fireproofing  Co.  ».  M»aon  BuUderB*  Aaa'n..  169  Fed.  289;  Allia- 
Chalnwn  Co.  Iron  Moldera'  Union,  wpra;  National  P»otective  Aaa'n.  t. 
Cummiiig.  «»l>ro;  Hckett  t.  Walah,  tupro. 

*  Berry  ».  Donovan.  188  Maw.  383,  74  N.E.  603 ;  Cunan  t.  Oaloi.  160  N.Y. 
33, 46  N.E.  297 ;  Brennan  ».  Hattera,  lupro. 

•Aikena  t.  Wiaconsin,  see  also  Purvia  ».  United  Brotherhood,  814  n. 

St.82S.63Att.68S;  Strte t. Stookfoid, 77 Conn. 227, 68 AtL 769. 


LABOR  DI8FUTE6 


263 


■liikM  mo^  tUs  role  in  any  wiae.^  The  fact  that  workmen 
an  in  the  employment  of  a  receiver  wider  the  direction  of  a 
aourt  does  not  affect  their  right  to  combine  or  to  strike.* 

Within  the  above  rule,  strikes  against  an  employer  to  secure 
an  increase  of  wages,  reduction  of  hours,  changes  of  shop  rules, 
safer  or  more  satisfactory  physical  oondhkutt  of  emptoynMSfct 
and  the  like,  aie  obviiKuly  lawful ;  and  Um  employer  is  withcmt 
nmedy  even  though  the  strike  threatens  to  result,  or  actually 
rautta,  in  hia  ruin,*  or  also  in  the  inconvenience  of  the 

public*  The  strike  must,  however,  be  actually  justifiable,  and 
while  the  strikers  must  have  acted  in  good  faith  in  striking  for 
what  seemed  to  them  a  justifiable  cause,  the  courts  will  them- 
selves decide  whether  or  not  the  purpose  for  which  the  strike 
was  instituted  amounts  to  a  legal  justification  of  it.*  The  chief 
difficulty  in  eaaea  of  thia  tort  ariaea  from  the  subsequent  pro- 
eeedinci  by  means  of  which  the  employees  seek  to  regain  employ- 
ment  on  the  tenns  of  their  ehdoe.  Strictly  speaking,  em- 
ptoyees  who  have  gone  out  on  a  strike  or  who  have  been  dis- 
charged or  locked  out  are  as  completely  severed,  in  the  eyes  of 
the  law,  from  all  relations  with  their  former  employers  as  if  the 
relation  had  never  existed,  and  the  relation  can  be  resumed 
only  by  virtue  of  a  mutual  agreement  ie  novo  between  the 
parties ;  and  tins  is  true  whether  the  employmmt  was  under 
contract  terminable  at  will,*  or  for  fixed  periods.'  If  this  rule 

•  Arthur  t.  Oakm,  63  Fed.  810. 11  CCA.  809;  Cumin  ».  (Mm.  tupra: 
Cumberland  OUae  Mfg.  Co.  t.  BotUe  Blow  n,  59  N.J.  Eq.  49.  46  AU.  208; 
People  «  nL  OiU  f.  Smith.  6  N.Y.  Cr.  Rep.  812.  affirmed.  110  N.Y.  633. 17  N.E. 
871.  •  Arthur  f.Onkae.ntpr«;  Jn  re  Higgina.  87  Fed.  4«S. 

•  My  Maryland  Lodge  «.  Adt.  100  Md.  238.  fi9  AU.  721. 

•  Arthur  ».  Oakes,  tupra.  »  De  Minico  v.  Craig  (Mass.),  94  N.E.,  317. 

•  Union  P.  R.  Co.  ».  Buef,  supra ;  Iron  Molders*  Union  t.  Allis-Chalmers  Co., 
168  Fed.  4ft  (COA.).  »  King  e.  W.  U.  Tel.  Co..  84  8.C.  73. 66  S.E.  944. 


MKXOCOrV  RESOLUTION  TEST  CHART 

(ANSI  and  ISO  TEST  CHART  No.  3) 


jS    /APPLIED  IIVMGE  he 


264        LAW  OF  THE  EMPLOYMENT  OF  LABOR 


were  carried  to  its  logical  conclusion,  it  would  leave  the  employer 
free  to  continue  his  work  as  n^idly  as  new  workmen  could  be 
secured  who  were  willing  to  accept  easting  conditions.  The 
courts,  however,  graorally  allow  to  the  striking  workmen  the 
privilege  of  counseling  with  and  persuading  nonstriking  or 
prospective  employees  not  to  work,  so  that  the  places  may  re- 
main imfilled  until  the  employer  grants  the  desired  concession. 
(See  sec.  120.) 

Strikes  are  frequently  undertake  to  a£Fect  the  personnel  of 
the  workmg  force,  either  by  procuring  the  discharge  of  employees 
not  in  favor  with  a  combination  of  thdr  fellow-workmen  or 
other  organisation,  or  by  influencing  the  employer  to  reinstate  a 
discharged  workman  or  to  esoploy  certun  individuals  or  classes 
of  workmen.  A  strike  to  secure  the  reinstatement  of  a  dis- 
charged workman  would  seem  to  be  lawful,'  and  such  a  right 
is  in  close  relation  to  the  right  to  strike  to  procure  the  employ- 
ment of  persons  acceptable  to  a  union.  This  rests  on  the  ground 
that  membors  of  a  union  may  lawfully  agree  not  to  work  with 
any  but  fellow-memban,  and  may  carry  out  that  agreement  so 
long  as  they  confine  thonsdves  to  peacnble  means ;  *  and  this 
is  true  even  thou{^  the  employer  is  put  to  additional  expense 
and  inconvenience  thereby,*  or  other  workmen  deprived  of 
opportunities  of  employment;*  but  a  strike  to  procure  the 
discharge  of  a  workman  merely  on  the  ground  of  personal  dis- 
like, with  no  showing  that  his  discharge  will  actually  better  the 

>  Pierce  •.  Stablemen's  Union,  166  Cal.  70, 103  Pac.  324 ;  National  Protective 
Aas'n.  V.  Cummins,  rupra.  Pw  eoiUra,  State  •.  Donaldson,  32  N  J.  h.  161. 90  Am. 
Deo.  640.   In  nom  oi  thaN  ohm  was  thia  point  directly  in  issue. 

•  Mayer  f .  JoanieyaMB  Stoaoeatteia'  Ah'b..  47  N  J.  Eq.  610.  30  Atl.  402. 

*  Pickett  e.  Wafah,  Mpra;  Nirtioaat  finpKwiag  Oo.  t.  Mmm  BoBdait' 
Aa'n.,  mtpra. 

<  NatioMi  PMtoetiv*  A«'a.  t.  Cuudiaf.  wim. 


LABOR  DISPUTES 


265 


ooadition  of  the  striking  workmen,  is  unlawful,  and  the  work- 
man interfered  with  by  such  action  is  entitled  to  damages.^ 
And  it  is  said  that  a  strike  which  has  for  its  object  not  so  much 
the  advantages  of  the  employment  of  the  members  of  the  union 
as  the  monopoly  cf  the  labor  market  will  be  regarded  as  unlaw- 
ful, and  acts  in  its  furtherance  will  be  enjoined.' 

The  reasons  assigned  for  putting  such  power  into  the  hands 
of  combinations  of  employees,  obviously  affecting  the  power  of 
others  to  act  according  to  thar  unrestricted  choice,  are  various. 
In  the  Kckett  case  organised  bodies  of  bricklayers  and  stone- 
setters  refused  to  work  for  building  contractors  unless  the  letter 
would  also  pve  them  the  work  of  cleaning  and  pointing  the 
walls.   The  workmen  who  had  been  employed  for  this  part  of 
the  work  sought  to  prevent  the  strike  by  asking  for  an  injunc- 
tion agwnst  any  form  of  interference  with  their  employment. 
The  employers  favored  the  request,  as  they  wished  to  divide 
the  work  for  reasons  of  economy  for  themselves  and  because 
they  claimed  that  the  pointers  did  better  work  in  their  specialty 
than  would  be  done  by  the  stonesetters  and  bricklayers.  The 
court  hdd  that  as  a  matter  of  trade  competition  the  latter  work- 
men were  justified  in  refusing  to  do  any  work  on  the  building 
unless  they  were  allowed  to  do  it  all ;  and  this  though  it  added 
to  the  cost  of  work  done  by  the  contractors  and  absolutely  de- 
barred the  pointers,  who  could  not  lay  brick  or  stone,  from  all 
emplo>ment,  since  such  resultfj  are  the  natural  and  legitimate 
consequences  of  competition.  This  reasonhig  would  support 
broadly  the  legality  of  strikes  undertaken  to  secure  the  employ- 
msnt  of  aooft  but  members  of  the  aasoeiation  acting,  and  this 

t  Dt  Miaieo  t.  Cnig.  tupra. 

*  Tcimxa  w.  Lewia  (Maa.),  94  N.E.  818. 


2^  o        LAW  or  TBS  miPLOTMENT  QT  LABOR 


Is  the  attitude  of  the  ooorts  generally  where  the  motiye  is  ap- 
pereot^  the  benefit  of  the  membnship  and  not  an  attack  on 
others  to  wantonly  or  malieioiialy  deprive  them  of  vapkrymmt^ 
Strikes  against  the  employment  of  persons  not  members  <d 
imions  have  been  justified  also  on  the  ground  that  the  union 
members  were  warranted  in  using  such  means  to  protect  them- 
selves from  the  consequences  to  themselves  of  the  emplojrment 
of  unskillful  or  careless  fellow-servants;'  so  also  if  a  work- 
man's "habits  m  oonduot  or  charactw  had  hem  such  as  to 
render  him  an  unfit  associate  in  tlie  abop  teg  ordinary  workmen 
of  good  charaetw."  * 

Where  a  contemplated  strike  is  of  a  lawful  nature,  it  is  not 
unlawful  to  notify  employers  or  others  affected  of  the  intention 
to  strike.  In  other  words,  it  is  not  unlawful  to  foretdl  or 
threaten  the  performance  of  a  lawful  act. 

Strikes  have  been  declared  unlawful  where  the  object  was  to 
enforce  the  payment  of  a  fine  imposed  on  the  employer  for  not 
giving  the  union  all  his  work,^  since  there  is  no  privity  of  con- 
tract betweoi  the  union  and  a  nonmembw,  nor  will  any  one  be 
c(»npe]]ed  to  buy  his  peace  or  the  right  to  do  buaness  by  pay- 
ments to  nongovernmental  bodies.  It  has  also  been  held  that 
a  strike  is  not  lawful  that  has  for  its  object  the  compulsory  sub- 
mission to  a  committee  of  the  employees  of  questions  relating 
to  individual  employees  and  the  enforcement  of  the  conclusions 

>  Berry  «.  Donovan,  188  Maw.  353,  74  N.E.  603 ;  National  Protective  Aaa'n. 
t.  Cumming,  mpra;  Gray  *.  Building  Trades'  Council,  91  Mina.  171. 97  N.W. 
003 ;  Mayer  r.  Journeymen  Stonecutters'  Aas'n.,  tupro. 

*  National  Protective  Aae'n.  •.  Cumming,  tupra. 

*  Berry  «.  Donovan,  wpro. 

*  Carew  v.  Rutherford,  106  Maas.  1, 8  Am.  Rep.  287 ;  Manh  w.  Bricklayers'  & 
Plaaterm'  Union.  70  Cons.  7, 03  Ati.  291 ;  State  t.  Dalton.  1S4  Mo.  App.  617. 1 14 

BM.im. 


LABOR  I>I3P1JTE8  267 

of  mieh  eommitteaL*  On  th«  nme  prindple  ft  strike  is  unlaw- 
ful where  ike  purpote  is  to  enforce  the  payment  of  fines  levied 
on  workmen  who  cb  not  belong  to  the  imion  levying  such  fines.* 
Neither  can  an  employer  be  made  the  collector  of  a  fine  assessed 
by  the  union  against  a  member  employed  by  him.* 

A  strike  to  compel  workmen  to  join  a  union  by  refusing  to 
work  with  them  until  they  joined  has  been  declared  unlawful, 
since,  while  actual  competition  will  not  be  restrained,  coercive 
acts  at  threats  m  wanton  and  malidous  interference  with  bua- 
ness  id«U(»is  ace  unlawful*  It  has  beoi  hdd,  however,  that 
strikes  to  proeuie  the  discharge  of  workmen  who  refused  to  join 
a  union  are  lawful,*  and  it  is  dear  that  the  same  result  as  to 
both  the  nonunion  workman  and  the  employer  may  be  reached 
by  a  concerted  refusal  to  work  with  any  but  members  of  a  union, 
which  is  seen  to"  be  legal  if  for  purposes  esteemed  beneficial  and 
not  for  purposes  of  persecution. 

It  has  been  assumed,  though  the  point  was  not  in  issue,  that 
strikes  in  violation  of  contracts  are  unlawful;*  but  since  it  is 
well-settled  law  that  the  violation  of  contracts  entails  only 
]ial»lity  tm  damages  resulting  tiier^rom  and  that  no  enforoe- 

>  Reynolds  v.  Davis.  194  Mass.  294, 78  N.E.  467. 

»  People  V.  Melvin,  2  Wheeler's  Crim.  Cases,  262. 

»  HiUenbrand  t.  Building  Trade*  Council,  14  Ohio  Dec.  N.P.  628 ;  Brennan  ». 
Hattera.  73  N.J.  L.  729, 06  Atl.  1«6. 

*  Hant «.  Woods.  176  Mass.  492, 57  N.E.  1011 ;  Erdman  v.  MitcheU,  207  Pa. 
79, 66  Ati.  327 ;  O'Brien  ».  Peoirfe,  216  111.  354, 75  N.E.  108 ;  Curran  ».  Galen, 
m  N.Y.  88, 4S  N.E.  297;  Stotot.  Dy«r.  B7  Vt.  790, 82  AtL  814;  Walker  t. 
Cronin,  107  Mass.  666. 

» Gray  ».  Buflding  Trades'  Council,  tupra;  and  see  Commonwealth  t.  Hunt, 

4  Mete.  (Mass.)  Ill,  38  Am.  Dec.  346. 

•State  t.  Stockford,  77  Conn.  227,  68  Atl.  769;  Reynrfds  «.  Davis,  tupra; 
United  SUtee    Haggerty,  116  Fed.  »10;  Goidfidd  Conwl.  Mlaee  Co.  Min- 
UnfcMi,  189  Fed.  800. 


268        LAW  OF  THE  EMPLOTMBNT  OF  LABOR 

ment  of  a  ooatraot  of  penonal  service  is  possiUe,  the  grounds 
f w  such  assumptions  are  not  ctear ;  and  it  has  been  spedfieidly 

held  that  no  restraint  can  be  put  upon  striking  ompkiywff,  even 
though  by  striking  they  violate  their  contracts.* 

Strikes  are  sometimes  undertaken  by  workmen  who  have  no 
grievance  against  their  employer  directly,  but  who  use  the 
strike  as  a  means  of  procuring  his  influence  in  the  settlement  of 
a  dispute  between  anotlier  employer  and  his  workmen.  Such 
strikes  have  heea  dengnated  as  eynqiathetie  strikes,  and  par- 
take of  the  nature  of  the  boycott.  The  purpose  is  to  obtain 
concessions  by  forcing  third  penoxa,  who  have  no  interest  in 
the  dispute,  to  force  employers  to  grant  the  demands  of  their 
workmen,  and  strikes  of  this  nature  have  been  held  to  be  un- 
lawful as  interfering  with  trade  freedom.'  This  view  lunits  the 
right  of  organized  labor  to  use  the  strike  only  as  a  means  of 
influencing  the  persons  with  whom  a  trade  dispute  actually 
exists,  without  involving  disintwested  parties.  It  has  been 
said  that  qrmpathetic  strikes  are  nothing  moro  than  boycotts, 
and  are  ille^  if  boycotts  are  iH^pd;'  though  another  writer 
defends  them  on  the  ground  of  the  "solidarity  td  interest" 
between  the  employees  of  the  two  employers.*  The  consensus 
of  judicial  opinion  is,  however,  against  the  lawfulness  of  the 
sympathetic  strike. 

Certain  incidental  consequences  of  strikes  have  received 

>  A.  R.  Barnes  ft  Ck>.  «.  Beny,  180  Fed.  72;  Artimr  t.  OakM, 88  Fbd.  810. 11 
C.CUL  200;  EiiudMa  w.  Bum,  128  Fed.  087;  Hc^Uim  t.  Oday  Stare  Co..  83 
Fed.  912.  28  CCA.  9B. 

«  TUkatt    Waldi.  192  Man.  672,  78  N.E.  783 ;  Reynold!  e.  Dmia.  tupn. 

*  Ttedeman,  State  and  Federal  CoDtral  of  Penone  and  Fk<v«rty,  p.  MO.  Ac 
to  the  legality  or  illeiaUty  ai  Ixqreotta,  aee  aee.  132. 

«OooiD>.  OfunMnattone.  MnnnpoHea,  «ad  Labor  PricM,  pp.  120,  m. 


LABOR  DISPUTES 


209 


jodidal  (XMudderation,  and  wmw  of  these  may  be  briefly  noted. 
A  case  of  this  sort  is  irian  the  employees  of  a  street  railway 
ocnqpany  were  <m  a  strike  and  a  passenger  sued  the  company 
to  recover  damages  for  personal  injories  received  y  him  on  one 
of  its  cars.  The  right  of  recovery  was  denied  in  this  case,  the 
court  holding  that  there  was  no  liability  unless  the  company 
knew  or  ought  reasonably  to  anticipate  that  it  could  not  safely 
carry  passengers  by  the  exercise  of  the  utmost  oare  on  its  part.* 
TtoB  accOTds  with  the  ruling  that  td^pn^h  and  telephone 
e(mipanies  are  not  liable  for  losses  resulting  from  the  failure  to 
transmit  messages  whwe  such  failure  is  due  to  the  acts  of  strik- 
ing employees.*  So  a  law  penalizing  a  raihroad  company  for 
failure  to  furnish  cars  on  demand  is  not  applicable  where  such 
failure  is  due  to  strikes ; »  and  a  strike  clause  in  a  contract  of 
service  is  a  valid  defense  in  a  suit  for  delay,  where  the  delay 
actually  results  from  a  strike ;  *  but  a  delay  caused  by  a  volun- 
tary lockout  by  the  employer  affords  no  such  d^ense.' 

A  suit  by  a  property  holdor  to  reoovw  damagns  from  an  em- 
^ay&  for  injury  to  his  pn^jerty  by  the  vident  acts  of  strildng 
employees  is  without  grounds,  since  the  employees  are  in  no 
wise  acting  within  the  scope  cf  their  employment  or  by  the 
authority  of  their  employer  in  the  oommianon  of  the  unlawful 
acts  complained  of.* 

A  workman  quitting  tervice,  all^png  fear  of  injury  fnnn  strik- 

•VewiBff  f.  Mandenlnll.  88  Minn.  387. 86  N.W.  90. 

•  SuUivan  •.  W.  U.  Tel.  Co.,  82  S.  C.  669, 64  8.  £.  762.  dtinc  JonMon  TeUgcivb 
«nd  Tdephone  Companiea,  sees.  360,  361. 

•  Murphy  Hardward  Co. ».  SouthOB  B.  Co^  UO  N.0. 708. 64  8JL  87S. 
«TIm  Tonmto.  168  Fad.  386. 

■  Mubonqr  a.  SDaitli.  116  N.T.  &  1001. 

•  Stay  «.  Aaariou  Ina  4  8tMl  Mfk.  Cik.  SIS  Pla.  178.  or  AIL  84 


270       LAW  OF  TBI  EMPLOTMIMT  OF  LABOB 


ingftilofWt'WOffimMii  if  heoontinuM,  will  be  regarded  as  breaking 
the  oontrMt  of  empkqnnenfc  and  liable  for  raniHaiit  damages, 
iince  th(  unplogrer  ii  not  reipoiMible  for  the  oame  of  the  bnaeh, 
and  does  not  himself  effeet  it.*  Hm  effeet  of  aueh  a  bnaeh 

on  the  employee's  right  to  recover  any  bdanoe  of  wages 
viously  earned  will  be  governed  by  the  same  rules  as  m  other 
cases  of  violated  contracts  (see  sec.  8).   It  has  been  held 
that  where  a  workman  accepted  employment  with  one  whose 
employees  had  gone  on  strike  and  had  threatened  violence  to 
any  one  takmg  their  plaoee,  the  employer's  faUure  to  inform 
the  new  employee  of  the  oireumatanoes  makee  him  liable  for  such 
injuries  as  the  workman  may  receive  as  a  randt  of  thus  igno- 
rwntly  accepting  employment*  The  laws  of  a  few  states  direct 
-ployers  advertismg  for  workmen  to  give  notice  of  strikes 
affecting  them,  if  any.»  In  one  aspect  these  laws  come  within 
the  rule  that  the  employee  should  be  informed  of  hazardous  con- 
ditions known  to  the  employer  and  not  patent  (see  sec.  68), 
though  th^  may  aboexprras  the  same  purpose  as  the  lUinois 
statute  which  forbade  free  public  empk^yment  <^ras  to  furnish 
names  of  ^plicants  fo  c.   I  -nent  taemptoyers whose  work- 
men were  on  strike  C  108).  Viewing  the  enaetment 
from  the  latter  standpoint,  thu  Illinois  supreme  court  declared 
unconstitutional  the  statute  requiring  notice  of  labor  disputes,  on 
account  of  its  unequal  application  to  employers  and  workmen 
differentiy  situated,  and  to  employers  as  compared  with  other  per- 
sons making  contracts.*  A  law  of  sUght  probable  vaUdity  is  one 

>  FUier  V.  Walsh,  102  Wis.  172,  78  N.W.  437. 

*  Holshouser  «.  Denver  Gas  A  Elaetrie  Co.,  18  Cote.  App.  481,  T8  PIm>.  289. 

•  lU..  E.S.,  ch.  48,  NC.  40 ;  Maai.,  Acta  1910,  ch.  446 ;  Tenn..  Acts  1901.  ch, 
104.  AMumedtobeTalid  in  Stdnert  A  Sou  Co.  t.  Taten,  (Mass.)  93  N.E. 
«84.  •*»*»-We*«ta8t«ICMr*ltoiia(lfyOo.,(ni.)«4N.B.M6. 


LABOR  DIMPUTM 


f71 


of  Minnesota  which  forbids  employers  to  require  as  a  condition 
prece  ient  to  employment  any  statement  in  writing  as  to  the 
participation  of  applicants  for  employment  in  any  strike.* 

Statutes  making  munidpalities  liable  for  damage  dome  by 
mobs  and  riots  are  oonstitutknal,  and  are  ^n^ieaUe  in  cases 
idien  the  iojury  ia  to  the  property  tit  the  fwmer  eiiq)logrer  of 
the  striking  workmen  and  is  done  by  such  workmen.* 

The  l^ality  of  strikes  has  been  made  the  subject  of  l 
lation  in  a  few  states,  either  directly  or  by  unplication.  Of  the 
latter  class  are  the  laws  declaring  that  labor  agreements  are  not 
conspiracies  (see  sec.  118) ;  and  that  it  is  not  unlawful  for  two 
or  more  persons  to  unite  or  combine  or  agree  in  peacefully  ad^ 
viang  or  encouraging  others  to  eater  into  o(»nbinBtions  ia  re- 
ktioii  to  altering  into,  leaving*  or  remaining  in  the  enq[)lognnent 
d  any  powm  or  cmpomikaaJ  Laws  of  this  dass  do  not  legal- 
ise the  conunisrion  or  threat  of  acts  of  violence,  nor  do  they 
restrict  the  power  of  the  courts  to  enjoin  such  acts,  their  only 
effect  being  to  declare  legal  certain  combinations,  but  not  au- 
thorizing coercive  measures;*  and  while  declaring  the  com- 
binations not  criminal,  they  do  not  take  away  the  right  of  any 
one  injured  thereby  to  sue  for  damages.* 

Anotlm  group  of  laws  is  one  rdating  to  stoikes  <rf  railroad 
anidoyeee,  by  wfaidi  it  is  f<»lnddm  to  abandon  trains  w  k>oo- 
motivea  in  the  furtherance  ci  a  strike  at  any  other  than  the 

>iauk.ItL..aee.  1823. 

•FwHsrlTania  Co.  t.  Gty  of  Chioi«o.  81  Fed.  317;  Fittobuig,  C.  C.  *  St. 
L.B.Co.c.CityorCliioaio.242111. 178,89N.E.  VOa. 

•  Colo.,  A.S.,  MC.  1295 ;  N.J.,  Gen.  St.,  p.  2344,  sec.  23. 

«  Finee  •.  Stablanem's  Union.  156  Cal.  70, 103  Pac.  324 ;  Goldberg  «.  Same, 
149  Cri.  439,  SSPke.  SOe;  Cnmberiuid  CHmb  Mfg.  Co.  t.  G1«m  Bottle  Bbmn, 
M  N. J.  E'       46  Atl.  208 ;  Curran  •.  Galen,  152  N.Y.  83, 46  NJB.  207. 

•  Ftank  «.  Herald,  63  N  J.  Eq.  443, 62  AU.  152. 


272        LAW  OP  THB  EMPLOTMENT  OF  LABOR 

point  of  destination  or  a  divirion  point.*  These  laws  oome 
within  the  reason  of  statutes  penalising  the  violaUon  of  con- 
tracts of  employment  when  the  probable  consequence  of  the 
act  is  the  jeopardising  of  life  or  of  valuable  property;*  and 
whlh  no  eaae  is  at  hand  giving  these  statutes  an  authoritotive 
oonstniction,  they  are  probably  valid.' 

Inaunaoe  afiiMt  kMi  or  iiyuiy  to  iMtdnan  by 
ohi^,  of  oourse,  the  00Qstrueti(m  of  the  ocmtraot  under  existing 
circumstances.  The  acceptance  and  retention  of  praniums 
with  fuU  knowledge  of  existing  disturbed  conditions  will  bar  the 
plea  that  the  insured  party  did  not  give  notice  of  such  conditions. 
So  also  if  replies  to  inquiries  are  ambiguous  and  the  policy  is 
neverthdefls  issued,  the  company  cannot  afterwards  complain 
of  sueh  ambiguity  in  an  efTort  to  avoid  the  liabihty  provided 
for  in  the  poUoy.« 

Suction  120.  PtfrstMuum  or /ndismsnl  to  Mbe.  •- Although 
it  is  generally  held  that  the  act  of  a  workman  m  striking  ter- 
minates absolutely  his  contract  with  his  employer  and  leaves 
both  parties  without  any  relation  or  mutual  status  whatever,' 
the  fact  remains  that  there  exists  in  many  minds  a  recognition 
ci  a  sort  of  oontuxuing  relation  which  dififerentiates  striking 
workmen  in  some  degree  from  those  never  in  the  abandoned 

« ni..  R.8.,  ch.  114,  see.  108 ;  Kan*..  O.8.,  MO.  8974;  N.Y.  Aeto  1008,  eh.  267, 
■oc.  62 ;  Pa.,  B.  P.  Dig.,  p.  633,  wc.  3«7. 

»  N.Y..  Con.  L..  ch.  40,  mo.  1010;  Wa*.,  A«ta  1909,  oh.  310.  we.  381. 

*Tol«lo,eto.,B.Co.«.  Ftaa«lTMiiaCo..MIW.74«:  Artinv  t .  OnkM.  83 
IM,  810, 11  C.CJi..  209. 

*  Buffalo  Forgf,  Co. ».  Mutual  Security  Co.  (Conn.).  78  Atf.  99S. 

»  Union  P.  B.  Co. ».  Ruef.  120  Fed.  102 ;  FSeroe  ..  Stablemen'a  Union.  166  Gal. 
TO,  108  PM.  838;  OoMfield  CoomL  Ifinw  Co.  t.  Goldfield  Miners'  Union.  159 
Fed.  800;  Ptop.  ilolor Ck Oft. Kw,m.  MO  Fed.  148;  Kaudwa t.  Bmui,  123 
Fed.  636. 


LABOR  DISPUTES 


273 


onployment.  This  is  recognized  within  certain  bounds  by  the 
courts  as  well,  inasmuch  as  it  is  generally  conceded  that  strikers 
may  rea*^on  with  other  workmen  or  possible  applicants  for  the 
vacated  positions  and  seek  to  persuade  them  not  to  remam  in 
or  aeeept  employment  with  their  former  employer.^  It  was 
vrm  Mid  in  a  ooiiraniii«  opinioa  fai  a  reeeat  eaae  that,  when  a 
■trike  or  a  kMkoat  has  for  ita  parpow  the  procuring  of  more 
dfliirable  terms  of  employment  from  one  of  the  partiea  to  a 
labor  contract,  the  act  of  striking  or  locking  out  does  not  com- 
pletely  terminate  the  relationship  between  the  parties.  ' '  The  re- 
lationship is  an  anomalous  one,  yet  distinctive,  and  of  such  nature 
as  to  secure  to  the  parties  certain  correlative  rights  under  which 
acts  may  be  performed  that  would  assume  a  different  aspect 
if  done  by  abecdute  strangers  or  in  differmt  eireunstances." ' 

The  eoctent  to  iHiidi  this  rule  may  be  carried  is  difficult  to 
determine,  idnoe,  while  it  seons  clear  that  peaoeabte  persuasion 
in  ommection  with  a  lawful  strike  should  be  r^arded  as  lawful, 
it  may  not  be  legally  carried  so  far  as  to  become  vexatious  and 
coercive,  nor  may  the  equal  rights  of  all  men  in  freely  contracting 
or  in  seeking  employment  be  ignore*  i  display  of  force,  though 
with  no  use  of  actual  violet  e,  is  unlawful,'  md  no  one  hai  i... 
right  to  obkude  upon  others  to  bafem  ^m  arguments 
tad  persuasifm  to  which  tiiey  are  unwiUing  u>  VMm.*  Striirars 

'Inn  Molden'  Unton  v.  AUia-Chalmera  Co.,  l(k  -d.  45,  91  ^'.C.A.  631; 
XuiM  Ftoiitan  Co.  t.  AmdgaiMtod  Woodworin;  tftS  Ind.  4S1, 71 

N.E.  877;  Wabash  R.  Co.  v.  Hannahan.  121  Fed.  5  -« tt-Waddy  Co.  r. 

Typographical  Union,  100  ^a.  188, 63  8.E.  273 ;  Jonen  Vaa  Winkle  Gin  * 
Machine  Works,  131  Oal.  830,  62  S.E.  386. 

*  Iron  M<dden'  Union  v.  Allis-Chalmers  Co.,  supra. 

*  O'Nefl  t.  Behanna,  182  Pa  St.  236.  37  Atl.  843. 

*  Frank  t.  Herold,  63  N.J.  Eq.  443, 52  Atl.  152 ;  8om6^.  ^.  Co.  -  Maehia- 
ilta'  Looal  Uoioii,  111  Fed.  40;  O'NeiU  c.  Behanna.  stifim,-  ion  P  ii  Co.  v, 
Bnaf,  mpra;  QoMMd  CouoL  MiaM  Co.  t .  Ooldfitiid  Miaen  tup,  a. 

T 


374       L4W  OP  TBI  mPLOTlfBNT  OF  LABOR 


may  not  go  upon  the  premines  of  the  employer  to  confer  with  hit* 
employees,  since  in  doing  eo  without  his  permission  they  become 
tmpMHit.*  Intiaiidfttioii  must  not  be  dkfoised  in  the 
mmed  ehaneter  of  perroMion.  FnsoMioa  too  «m|duiiie  or 
too  long  and  persistently  ocmtinued  may  itMdf  beecme  a  nulsanee, 
and  its  use  a  form  of  unlawful  coercion.* 

With  the  extensive  and  freely  used  power  of  organisations  to 
influence  the  prospects  of  employment  c:  of  the  formation  and 
maintenance  of  business  relations  of  every  sort,  it  must  be  ad- 
mitted that  a  simple  representation  to  the  effect  that  a  given 
oourse  ci  oonduet  is  kxAed  upon  with  disfavor  by  an  organisa- 
ticm  '-^  of  itsdf  a  potent  influoioe,  and  often  amounts  to  an 
IntOTferenee  with  the  free  oourse  ci  etmduct  on  iHiioh  Hne  *'ptob- 
able  otpectancies"  of  business  rest*  Sueh  interference,  there- 
fore, even  if  by  simple  persuasion,  is  not  an  absolute  right,  but 
demands  justification  for  its  exercise.  Courts  have  given  ut- 
terance to  the  statement  that  a  wrongful  motive  cannot  convert 
a  legal  act  into  an  illegal  one,*  but  the  overwhelming  consensus 
of  opinion  is  to  the  effect  that  acts  affecting  injuriously  or  in  a^iy 
mumu  interforing  with  or  embarrassing  the  emuse  oi  employ- 
ment or  buriness  requue  jus^e«ti<m  in  cwder  to  imteet  them 
from  being  actionable,  howevor  legal  th^y  may  be  merely  as 
nets.*  The  question  whether  conduct  is  actionable  Moe^.^)  ily 

>  Webber  v.  Barry,  66  Mich.  127.  88  N.W.  289. 

>  Otis  Steel  Co.  t.  Iron  Moiden'  Union.  1 10  Fed.  49 ;  CNeO  w.  Behannit.  tupra. 
•State  «.  Donildson,  32  N.J.L.  161,  SO  Am.  Dec.  040;  BoutweU  t.  Marr,  71 

Vt.  1,  42  Atl.  6(r ;  Curran  ».  Oalen,  162  N.Y.  33.  46  N.E.  297. 

«Quinn  f.  Leathern.  86  L.T.  289;  J.  F.  PkrkinK>n  Co.  t.  Building  Tradea 
Conaea.  154  Cal.  581. 96  Pkc.  1027 ;  State  ».  Van  Pelt.  18«  N.C.  838. 49  S.E.  177. 

»  Aikens  ».  Wiaconmn,196  U.S.  194.  25  Sup.  Ct.  3 ;  Loewe  ».  Lawlor,  208  U.S. 
274. 28  Sup.  Ct.  301 ;  JerMy  City  Printinc  Co. ».  Caaaidy,  63  N.J.  Eq.  769, 53  Ail. 
280:  8tatof.8toekfMd,770oaB.227.6SA«L78e:  Se]nialdaf.D*Tfab  IflSMaae. 


LABOR  DlgPirrBB 


275 


calls  for  determination  on  the  merits  of  the  individual  case; 
and  "  ju8tificati<m  may  be  found  sometimcf  in  the  circumstances 
undsr  which  H  to  doaa,  imfpeetiw  of  motive,  sometimes  in  the 
motive  alone,  and  sometimes  in  the  circumstances  and  motive 

combined."* 

The  problem  of  determining  the  boundary  between  persuasim 
of  an  allowable  sort  and  that  which  will  be  condemned  as  co- 
ercive is  therp  '  -^e  of  fact,  and  each  case  will  be  determined 
on  its  own  i  '  r  .  idings.  The  courts  will  not  decree  all  per- 
suasion an  in^v/ierence,  "but  where  evidence  presents  such  a 
case  aa  to  ctmvince  the  court  that  the  employees  are  being  hi- 
dttoed  to  toave  ih»  emgioiyBe  by  operating  upon  their  fears 
rather  than  vpoxi  their  judgments  <v  tlwir  sympathy,  the  court 
will  be  quick  to  lend  its  strong  arm  to  his  protection."  * 

Officials  of  labor  organisations  who  are  not  fellow-workmen 
with  the  employees,  and  who  have  therefore  no  relation  to  the 
employers,  may  nevertheless  counsel  and  advise  with  employees 
who  are  members  of  their  organizations  as  to  the  advisability 
of  striking,  especially  where  no  strike  can  take  place  without 
the  vote  and  consent  ot  the  onployees  thraoselves; '  and  if  the 
offidals  are  thoiaelves  authwiied  by  the  unicm  to  call  or  declare 
atrikee  in  thdr  dtoeretion,  it  u  not  unlawful  for  them  to  so  act.* 

804.  M  M  467 ;  Builde  «.  Griffin,  76  N.H.  345, 74  Atl.  696 ;  Martin,  The  Mod- 
ern Imw  of  Labor  Uniona,  p.  47;  Erie,  Trade  Uniona,  p.  20;  Pennant,  Trado 
Uniona  and  Worbnen,  p.  39.  Thia  view  ia  rejected  by  Cooke,  Combinationa, 
MoDopoliea,  and  Labor  Uniona,  pp.  17-22,  though  he  citea  numerous  casea 
which,  he  aaya,  "aeem,  generally  apealdnc  to  uphold  the  view  condemned  in  the 
t«t<"  *  Plant  t.  Wooda.  176  Maaa.  402,  07  N.E.  101 

»  Rosera  t.  Evarta,  17  N.Y.  Supp.  264. 

•  A.  R.  Barnea  &  Co.  ».  Berry,  167  Fed.  883 ;  Delaware,  L.  ft  W.  R.  Co.  a. 
Switchmen's  Union,  168  Fed.  641 ;  Wabaah  R.  Co.  t.  Hannahan,  awpra. 

*  Thomaa  «.  Cincinnati  N.  O.  ft  T.  P.  B.  Co..  83  Fed.  808 ;  DeUwsn,  L.  * 
W.  R.  Co.  f.  Switchmen's  Union,  supra. 


276        LAW  OP  THE  EMPLOYMENT  OP  LABOR 

These  rights  do  not  extend,  however,  so  far  as  to  give  liberty  to 
incite  strikes  in  the  violation  of  contracts,  even  though  the  work- 
men might  of  themselves  lawfully  so  strike.*  Obviously,  or- 
ganizers seeking  to  extend  the  ranks  of  organized  labor  and  not  as 
yet  in  association  with  the  workmen  could  not  so  interfere,* 
since  it  is  on  the  basis  of  the  community  of  interest  of  associated 
workmen  and  their  mutual  agreemmts  as  to  rqnresentation  and 
authority  that  the  acts  of  counseling  or  directing  must  rest  for 
their  justification.*  The  officers  charged  with  the  control  of 
strike  funds  may  lawfully  use  them  to  pay  the  cost  of  trans- 
portation of  workmen  away  from  the  locality  in  or  at  which  a 
strike  is  in  progress,  or  to  offer  to  pay  benefits  to  employees  as 
an  inducement  to  them  to  leave  service ;  since  "the  strike  bene- 
fit fund  is  created  by  moneys  deposited  by  the  men  with  the 
genonl  officers  for  the  support  of  themsdves  and  families  in 
time  of  strike,  and  the  court  has  no  more  control  of  it  than  it 
world  have  over  deposits  made  by  them  in  the  banks."  *  It 
has  been  held  that  such  payments  may  be  made  to  persons  who 
are  not  members  of  the  organization  contributing  to  the  fund.' 

Section  121.  Picketing.  —  Picketing  as  an  incident  to 
strikes  is  a  watching  or  espionage  of  the  place  of  employment  or 
the  approaches  thereto,  or  of  the  homes  or  lodging  places  of  em- 

« A.  R.  Barnea  A  Co.  v.  Berry.  156  Fed.  72;  Reynolds  v.  Davis,  198  Mass. 
294.  84  N.E.  457 ;  Wabash  R.  Co.  v.  Hannohui,  ntjm;  Arthur  t.  Oakm,  mtprat 
Jersey  City  PrtntiDg  Co.  «.  Caasidy,  tupra. 

»  Hitehman  Coal  Co. ».  MiteheU,  172  Fed.  983 ;  Placcus  t.  Smith,  199  P».  St. 
128,  48  Atl.  894 ;  United  States  ».  Haggerty,  116  Fed.  510. 

•See  National  Protective  Ass'n.  ».  Cumming,  170  N.Y.  318.63  N.E.  369; 
Pickett  «.  WaUi.  192  Mam.  572, 78  N.E.  763;  In»  Moldm'  Unfam  t.  AUIs- 
Chalmers  Co.,  supra. 

«  A.  R.  Barnes  ft  Co.  ».  Berry,  157  Fed.  883. 

*  Everett-Waddjr  Co.  •.  RidMaond  TniOfr»phiad  Ualoa.  tmpra;  Bogm  t. 
Svartt, 


LABOR  DISPUTES 


277 


ployees  or  pomiUe  employees,  to  procure  infwmation  m  to  tiie 
I«ogren  of  the  etoilEe  and  as  to  any  means  to  make  it  effective. 
It  has  bem  d^ned  as  a  watching  and  anm^ying,  and  while  the 

word  had  not  such  a  meaning  in  its  original  use,  it  is  sud  that 
the  definition  has  taken  that  form  as  the  result  of  the  conduct 
of  those  engaged  in  the  work  of  picketing,  and  that  the  adoption 
of  a  term  derived  from  the  nomenclature  of  war  is  appropriate 
as  the  picket  is  an  expression  of  hostility  and  is  evidence  that  a 
state  of  war  exists.* 

The  courts  differ  as  to  the  lawfuhiess  of  picketing.  Where 
it  is  in  ud  <rf  an  unlawful  strike,  or  is  accompanied  by  violence 
or  by  such  a  display  of  force  or  numbers  as  to  intunidate  work- 
men or  the  public,  or  to  obstruct  the  highwajrs  or  the  approaches 
to  places  of  business  or  employment,  there  is  no  difference  of 
opinion.  An  insulting  or  menacing  attitude  may  be  no  less  in- 
timidating than  an  actual  assault,  and  a  request  may  be  coercive 
by  mere  force  of  numbers.'  The  fact  that  pickets  are  appointed 
by  an  organisation  in  no  wise  rdieves  them  from  personal  re- 
qKnuribili^  for  their  conduct  toward  third  persons;  and  the 
fact  that  they  are  the  r^resentatives  of  a  "mysterious  and 
powerful  organized  authority"  may  be  considered  in  determin- 
ing whether  or  not  the  picketing  is  intimidating  and  coercive  in 
its  nature  and  effect.*   Picketing  has  been  broadly  condemned 

*Otia  Sted  Co.  f.  Iron  Molden'  Union,  110  Fed.  098;  Beck  «.  Teamaten' 
rrotoctlye  Union.  118  Mich.  487,  77  N.W.  18 ;  Jonea  t.  E.  Van  Winkle  Gin  it 
Machine  Worka,  131  Ga.  330,  02  S.E.  230. 

*Iron  Molden'  Union  •.  Allia-Chalmen  Co.,  100  Fed.  45,  91  CCA.  031; 
Yeielahn  t.  Oantner.  107  Mim.  93. 44  N.E.  1077 ;  Idad  Mfg.  Co.  t.  Ludwig.  IM 
Mich.  188.  m  N.W.  728 ;  MbtCbataun  Co.  t.  boa  Moidan'  Union.  150  Fed. 
155.  , 

•  Earges  Furniture  Co.  a.  Amalgamated  Woodworkers,  105  Ind.  421,  76  N.E. 
877;  AUia-Ghalmaa  Co.  t.  Ina  Mddaa'  Uni(m.  aupra;  Vegelahn  a.  Guatsw, 


278        LAW  OF  THB  EMPLOTMBNT  OF  LABOR 


M  ilkgri  on  tbe  ground  that  the  foot  of  its  Mtabliahment  is 

evidence  of  an  intention  to  annoy,  embwrass,  and  intimidate ; 

and  the  position  of  the  pickets,  a  few  feet  or  a  thousand  feet 
from  the  picketed  person's  place  of  business,  is  immaterial, 
since  the  whole  procedure  is  an  unwarranted  interference  with 
the  course  of  business.^  Men  may  singly  or  jointly  quit  an 
onployer,  but  they  have  no  right,  either  singly  or  jointly,  in  the 
absence  of  Intimate  interests  to  protect,  to  seek  to  ruin  a  man's 
buriness  by  gathning  about  the  aiq>roaohes  to  his  jriaoe  of  busi- 
ness, and  thm  by  dthor  permaaon,  eoerdcm,  or  tctce,  prevent 
his  patrons  and  the  public  at  large  from  dealing  with  him;* 
and  it  has  been  said  that  there  can  be  no  such  thing  as  a  peace- 
ful picketing,*  and  that  its  maintenance  is  an  injurious  inter- 
ference in  a  matter  in  which  the  pickets  had  no  rightful  concern, 
and  is  imlawful.^  "In  i  s  mildest  form  it  is  a  nuisance,  and  to 
compel  a  manufacturer  to  have  the  natural  flow  of  labor  to  his 
employment  sifted  a  sdf-c(H»tituted,  antagonistie  oonmittee, 
whose  vny  presence  upon  ihs  hi^way  for  midi  purpose  is  de- 
torent,  is  just  as  destructive  oi  his  prepay  as  is  a  bojroott  which 
prevents  the  sale  of  Ms  product."  * 

The  majority  of  cases  seem  to  hold,  however,  that  picketing 
is  not  of  itself  unlawful,  and  that  the  circumstances  of  each  case 
must  be  considered.  "There  must  be  taken  into  account  the 
sise  of  the  guard,  the  extent  of  their  occupation  of  the  street, 

<  A.  R.  Baraea  A  Co.  t.  Chicago  Typographical  Union  232  111.  424,  83  N.E. 
040;  Pierce  c.  Stablemen's  Union,  166  Gal.  70, 103  Pac.  323 ;  Beck  «.  Railway 
Ttamaten'  Protaetive  Union.  «ujMna;  Otia  Steel  Co.  t .  Iron  Moldan'  Union,  tupn. 

•  Jenaea  t.  Cotdoi'  *  Wiatten'  Unioa.  89  Wadi.  fiSl.  81  Pke.  1060. 

•  Atchison,  Topeka  *  But*  F»  B.  Co.  t.  Gm,  180 IM.  882 ;  UnioB  P.  B.  Co.  a. 
Ruef,  120Fed.  102. 

«Knudaen  a.  Bom,  128  Fad.  888. 

•  G«>.:JoaMQiMaOo. «.  OUmhmtBkmmB,n  NJ.  Bq.  8S8. 88  AtL  088. 


LABOR  DIBPUTI8 


279 


■od  wfattk  they  say  and  do.  TaUng  every  drenmBtanoe  into 
aeoooii^  if  i^qwan  tiiat  the  purpose  of  the  {ndceting  u  to  ^ 
terfera  iviUi  those  passiag  into  or  out  of  the  woi^  or  those 
wishing  to  p^ss  into  the  works,  by  other  than  persuasive  means, 
it  is  illegal.  If  the  design  of  tlie  picketing  is  to  see  who  can  be 
the  subject  of  persuasive  inducements,  such  picketing  i :  legal."  ^ 
It  was  said  in  the  above  case,  however,  that  "a  permanent 
guard  in  a  public  street  in  front  of  citizens'  houses  or  a  factory, 
is  in  itself  a  nuisance" ;  and  another  court,  while  holding  that 
peao^  picketing  is  at  least  theoretically  possible,  and  is  en- 
tirdy  lawful,  said  that  is  nevwthdess  "very  much  of  an  illu- 
si<m."« 

From  the  distinctions  drawn  by  the  supporting  cases,  and 
from  the  fact  that  in  some  of  them  it  was  found  that  the  rigiit  to 
picket  had  been  exercised  so  as  to  transcend  lawful  bounds,  it  is 
evident  that  the  line  between  a  picketing  that  the  courts  will 
allow  and  one  that  they  condemn  is  easily  and  frequently  trans- 
gressed in  fact.  Thus  m  the  Allis-Chafaners  case,  the  court 
suggested  the  adoption  of  a  button  by  indrats,  and  theur  employ- 
ment in  lunited  numbers.  Itwas  found  that  they  w^  used  in 
sudi  numbers  and  in  so  threatening  a  manner  as  to  depart  en* 
tirely  from  the  purpose  of  the  court  in  making  the  suggestion, 
and  it  was  said  by  the  court  in  the  course  of  its  decision  that 
peaceful  picketing  generally  developed  into  strong,  persistent, 
and  organized  persuasion  and  social  pressure  of  every  descrip- 

1  Comberiand  Glass  Mfg.  Co.  v.  Glass  Blowers'  Ass'n.,  69  N.J.  Eq.  49, 46  Atl. 
90B.  Bee  also  Iron  Molders'  Union  •.  Allis-Chalmers  Co.,  tupra;  Earges  Furni- 
tun  Oo.  t.  Amalcunated  Woodworkers,  tupra;  Pope  Motor  Car  Co.  v.  Keegaa, 
mtpra;  Mflls  ».  U.S.  Printing  Co.,  99  App.  Div.  606. 91  N.Y.  Supp.  188;  Ever- 
ett-Waddy  Co.  t.  Richmond  Typographical  Union.  105  V*.  188,  S8  B.E.  278. 

•  ftiih  ftwImOT  Tn  •.  Inn  Mokkn'  UbIob.  Mqm. 


280        LAW  OF  THE  BMPLOTMKNT  OF  LABOB 

tkm,  maUng  the  oooditkm  of  wmknm  disagreeable  and  in- 
toleraWe,  and  that  then  "the  condition  has 
the  peaceful  purpoee  of  promoting  the  economic  ends  of  the 
union  men,  and  has  entered  the  unlaT^ul  stage  of  maUdous 
injury,  without  just  cause  or  excuse,  to  rights  jijst  as  important, 
and  as  fuUy  protected  by  the  constitution,  as  those  on  whose 
behalf  these  acts  are  committed."  The  defense  of  the  act  rests 
on  the  tact  that  "the  right  to  persuade  new  men  to  quit  or 
dedine  employment  is  of  Uttie  worth  unless  the  strikers  may 
•■certain  who  are  the  men  that  their  kte  employer  has  per- 
suaded or  is  attempting  to  persuade  to  accept  employment." 
It  has  been  said  that  the  right  to  persuade  and  to  picket  should 
be  maintained,  but  with  wat-hfuhess  on  the  part  of  tHe  eourts 
to  determine  whether  or  not  duress  is  being  used  under  the 
guise  of  persuasion,  and  intimidating  obstruction  and  annoy- 
ance under  that  of  picketing.*    The  lUinois  supreme  court 
rejects  this  as  not  a  safe  rule,  since  "it  furnishes  no  fixed  stand- 
ard of  what  is  lawfuL  Any  picket  line  must  result  in  annoy- 
ance  to  both  the  employer  and  the  workman,  no  matter  what 

is  said  or  done,  and  to  say  that  the  court  is  to  determine  uy  the 
degree  of  annoyance  whether  it  shaU  be  stopped  or  not  would 
furnish  no  guide,  but  leave  the  question  to  the  individual  Mo- 
tions or  bias  of  the  particular  judge." «  This  is  condemning  a 
rule  of  law  because  not  of  easy  application,  and  the  view  ex- 
pressed in  connection  with  the  drawing  of  the  line  between 
persuasion  and  intimidation  wiU  doubtless  command  more 
^H«al  approval;  but  H  is  clear  from  the  number  and  weight 
of  the  opinions  against  it  tnat  the  right  of  picketing  is  one  of 

•  &0B  UMmf  UbIob  «.  ABWadmers  Co.,  wpn. 
•A.  B.BMMi40o.  t.  C*fcH»T>iK>si«i*|«|  UaloB, 


LABOB  DIBPUm: 


281 


the  tooxe  doubtful  onoi,  and  is  to  be  enrdsed  only  iHthin  itriot 
bounds,  where  at  all  tolerated,  if  it  is  to  avoid  ivohibition. 
When  it  is  connected  with  the  boycott,  picketing  is  gmerally 
oondramed,*  since  it  amounts  to  an  effort  to  coerce,  or  to  in- 
fluence by  other  means  than  free  argument  and  persuasion. 
Where  the  boycott  is  held  unlawful,  of  course  acts  in  further- 
ance ihsrt^t  are  unlawful. 

An  org^ization  of  workmen,  not  employees  of  the  company 
whose  works  are  being  picketed,  has  no  such  right  or  interest 
hi  the  dcattw  of  the  maintenance  of  a  picket  as  to  warrant 
tile  grat  'ing  of  an  injunction  against  the  enq>loyer  to  prevent 
his  taking  measures  against  the  maintenance  of  pickets  at  or 
about  his  plant.'  It  was  said  in  this  case  that  the  grievanc 
if  any,  was  that  of  the  pickets  themselves ;  that  the  organiza- 
tion as  an  employer  of  pickets  had  failed  to  show  any  substan- 
tial pecuniary  damage;  and  from  all  that  appeared,  a  suit  at 
law  would  afford  ample  redress  against  the  financially  responsible 
employer.  Where  a  picket  engages  in  unlawful  acts  which  are 
acoqyted  at  ^>proved  by  the  labor  union,  it  becomes  respon- 
nble  therefor,  and  an  mjunction  wXi  lie  against  it  to  prev-ent  the 
further  maintenance  of  such  pickets.' 

Statutes  prohibiting  picketing  are  found  in  a  few  states.* 
The  prohibitions  of  these  laws  run  against  going  near  or  loitering 
about  the  prt^mises  where  any  lawful  business  is  carried  on,  for 

>a«o.  J«bmO.     Jo.  t.  GHm  I  Bottle  Blowsn,  rapro;  My  Manrlaod  Lodfa 

f.  Adt,  IvX)  Md.  238.  60  Ati.  '^21.    And  see  the  followiDg  nection. 

*  Atkiiia  •.  W.  &  A.  Fletcher  Co.,  65  N.J.  Eq.  658,  55  A*l.  1074. 

*G«o.  JcQM  OImi  Co.  t.  Giaas  Bottle  Blowers,  ntpra;  Goldfield  Conaol. 
Min.  Co.  «.  Goldfield  Minen'  Union,  169  Fed.  600;  ud  eee  Unioa  P.  B.  Co.  f. 
Ruef,  120  Fed.  102. 

«Alik.Code,Me.88M:  Colo.,  Aeta  lOOS.  eh.  79. 


282       LAW  OF  THE  EMPLOYMENT  OP  LABOR 


the  puipoee  of  infliwncimg  or  inducing  othen  not  to  have  deal- 
ings with  those  engaged  la  such  busmefls;  or  the  pieketing  of 
any  vsorks  or  place  of  business  for  the  puipoee  of  interfering 
with  or  injuring  any  lawful  business.  A  city  ordmance  prohib- 
iting picketing  for  the  purpose  of  intimidation  or  of  threaten- 
ing workmen  was  held  valid; »  though  it  was  said  that  very 
serious  doabta  exist  as  to  the  validity  of  a  provision  as  to  loiter- 
ing, similar  to  thoee  in  the  statutes  noted  above.  Thesupreme 
court  of  Missouri  declared  unconstitutional  a  city  ordinance 
which  prohibited  lounging  or  loafing  on  street  comers  or  other 
public  places,  in  a  case  in  which  the  ordmance  was  invoked  to 
procure  the  arrest  of  pickets.' 

Section  122.  BcycoUs.  —  The  boycott  has  been  defined  as 
"a  combination  to  harm  one  person  by  coercing  others  to  harm 
him";*  or  as  "an  organised  effort  to  exclude  a  person  from 
business  relations  with  others  by  persuasion,  intimidation,  ana 
other  acts  which  tend  to  violenoe'';*  or  as  "a  confederation, 
generally  secret,  of  many  persons  whose  intent  it  is  to  injure 
another  by  preventing  any  and  all  persons  from  domg  business 
with  him  through  fear  of  incurring  the  displeasure,  persecution, 
and  vengeance  of  the  conspirators";'  or,  more  briefly,  as  an 
illegal  conspiracy  m  restraint  of  trade.'  Much  turns  o"  the 
definition  of  the  term,  therefore,  since  as  above  defined  the 
courts  must  of  necessity  condemn  the  boycott  as  unlawful. 

« jr«  jMrff  TiraUanu.  (C«I.)  Ill  Pm.  1035. 
«  City  of  St.  Louia  v.  doner,  210  Mo.  602,  109  S.W.  30. 
1«4  Federation  of  Labor  t.  Buck's  Stove  ft  Range  Co.,  37  Waah.  L.  R. 

«  Brace  Broe.  v.  Evans,  8  Pa.  Co.  Ct.  163,  3  Ry.  &  Corp.  L.  J.  561. 
•Crump  V.  Com.,  84  Va.  927,  2  S.E.  620;  Branson  v.  Industrial  Workws  of 
the  World.  30  Nev.  270,  95  Pac.  364. 

•  Walsh  t.  Aas'n.  of  Mastw  Plumben,  97  Mo.  Aw.  880,  71  S.W.  48S. 


LABOB  DUmjTIB 


288 


"The  law  does  not  pennit  cithv  employer  or  employee  to  use 
ftme,  ykSmae,  threati  of  fono,  or  threats  of  violaiee,  intimi- 
datkm,  or  ooerokm."  * 

A  broader  definitioic  has  been  o£Fered,  as  that  a  boycott  is 
"the  act  of  a  combination  of  persons  in  refusing  to  deal  or  in 
inducing  others  to  refuse  to  deal  with  a  third  person,"  *  thus 
practically  eliminating  the  distinction  betwtBn  a  boycott  and 
the  mere  act  of  refusing  to  deal,  either  singly  or  in  consultation. 
Another  definition  of  the  same  nature  is  that  it  is  "the  wich- 
drawal  foe  a  certaiin  purpose  of  the  patt<mage  oi'  the  person  or 
posons  initiating  it,  and  ci  as  many  othors  as  Ine  or  they  can 
induce  to  join  them" ; '  and  in  an  opini<m  of  the  supreme  court 
of  New  York  it  was  sud :  "I  think  that  the  verb,  'to  boycott,' 
does  not  necessarily  signify  that  the  doers  employ  violence,  in- 
timidation, or  other  imlawf ul  coercive  means ;  but  that  it  may 
be  correctly  used  in  the  sense  of  the  act  of  a  combination,  m 
refusing  to  have  business  dealings  with  another  until  he  re- 
moves or  ameliorates  conditions  which  are  deemed  inimical  to 
the  wdfare  of  the  mmnbors  ci  the  combination,  or  some  of  th^, 
m  grants  concessions  idiich  are  deoned  to  make  tat  that  pur- 
pose." *  In  the  Lindsay  case  it  was  held  that  there  is  nothing 
unlawful  in  the  act  of  imion  working  men  in  withdrawing  their 
patronage  from  the  plaintiffs  or  from  any  other  concern  doing 
business  with  them,  and  that  no  fact  of  combination  will  make 
unlawful  any  act  which  an  individual  might  lawfully  do.  "In 
other  words,  the  mere  combination  of  action  is  not  an  element 

>  My  MaiyUnd  Lodge  «.  Adt,  100  Md.  2?S.  6d  AH.  721. 

*  Cooke,  Combiiwtioiia,  Moaopcrfies,  ud  Labor  UnioiM,  p.  60. 

*  E.  P.  Cheney,  4  Pol.  Sci.  Q.  274. 

*  Mills  V.  U.  r4.  Printing  Co.,  91  N.Y.  Supp.  185,  99  App.  D.  60S ;  adopted  in 
LbdMgr   Monteaa  Fed.  ofLdm.  S7  Mnt  364, 98  Flu.  137. 


284       LAW  OF  TBI  IMFLOTMINT  OF  LABOR 


wUehghretehafMlartotlMMt.  It  ii  tlit  Ukfidity  of  the  puN 
poM  to  be  Moomplished,  or  the  iUcgd  meant  oMd  in 

of  the  purpose,  which  makes  the  act  illegal."  *  In  this  eaw  the 
court  refused  tocontiaue  an  injunction  against  a  boycott  pros- 
ecuted largely  by  the  distribution  of  a  circular  declaring  the 
plaintiffs  (wholesale  and  retail  merchants)  unfair,  and  calling 
on  retailors  and  the  public  to  withhold  their  patronage  from 
them,  asking  them  to  do  this  "for  your  own  protection  and  the 
protection  of  organised  hhot."    The  supreme  court  of  Cali- 

foinia  tooic  a  nmihv  view  in  a  ease '  involving  eff<»ts  to  miicmise 
the  plaintiff's  business  and  the  causing  ai  loss  thmngh  the  oee- 
sation  of  trade  relations  with  a  number  of  former  customen, 
leading  in  some  instances  to  the  violation  of  contracts.  It  was 
held  that  customers  were  entitled  as  a  matter  of  fair  dealing  to 
Imow  that  the  company  had  been  declared  unfair  so  that  they 
would  be  able  to  avoid  mconvenience  and  loss  to  themselves  by 
Ineaking  oil  thdr  rdations  with  the  company,  since  no  union 
workman  would  handte  material  purchased  tnm  it.  A  suffi- 
dent  justification  for  the  acts  of  the  council,  in  so  far  as  they 
were  responsible  for  the  violation  <A  the  contracts,  was  and  to 
exist  in  the  duty  of  the  union  to  so  warn  the  customers  of  the 
company.  The  situation  was  described  as  a  bringing  to  bear 
upon  the  company  the  pressure  of  loss  infficted  by  third  persons, 
with  whom  no  controversy  existed,  by  holding  over  those  per- 
sons the  risk  of  financial  loss,  thus  compelling  them  to  act  against 
theb  own  will.  Such  acuuu  was  said  to  be  nothing  more  than 
trade  competition  in  an  effort  to  secure  the  employment  of  union 

« Citing  Bohn  Mfg.  Co.  r.  HoUis,  64  Minn.  338,  U  N.W.  119;  Nst  Ph>t 
Aaa'n  •.  Cumming,  170  N.Y.  316.  63  N.E.  360. 

*  J.  F.  FkridnaoB  C!o.  t.  Biiildii«  TnOm  Comdl,  IM  KM.  681»fiS  Fke.  1037. 
8m  alM  Steto  t.  Vu  Nt,  MS  N.C.  6SS.  4»  BJE.  177. 


LABOB  DUUHtnn 


386 


worianoi  to  the  exdurioo  ol  all  not  anod«ted  wHh  them,  and 
on  teran  deoned  ntfaf aetoty  and  advaatafeoua  to  the  memben 
of  the  unkm.  Since  each  member  was  ontHled  to  m  act,  all 
might  80  act  in  combination.  "It  maijr  be  that  the  combina- 
tion of  great  nimibers  of  men,  aa  <tf  great  amounts  of  capital, 
has  placed  in  the  hands  of  a  few  persons  an  immense  power,  and 
one  which,  in  the  interest  of  the  general  welfare,  ought  to  be 
limited  and  controlled.  But  if  there  be,  in  such  combinations, 
evib  iriiiofa  durald  be  redreeeed,  the  remedy  is  to  be  sought,  as 
to  lome  extent  it  has  been  sought,  by  l^pslatiim.  If  the  ccm- 
ditknis  require  new  laws,  these  laws  should  be  nuide  by  the 
law-maUng  power,  not  by  the  courts." 

These  cases  stand  quite  clearly  marked  off  from  the  great 
body  of  decisions  on  the  point  involved,  since  the  boycott  is 
generally,  by  its  very  definition,  put  without  the  pale  of  those 
combined  activities  which  the  law  will  permit.  In  a  tolerably 
recent  case  it  was  said  that  ^he  distinction  between  an  ordinary 
lawful  and  peaceable  strike,  entered  upon  to  obtain  cmicessiQns 
in  tiie  terms  oi  the  strikers'  ^idoyment,  and  a  boycott,  is  not 
a  fandful  one.  "Boycotts,  though  unaceompanied  by  violmoe 
or  intimidation,  have  been  pronounced  unlawful  in  every  state 
in  the  United  States  where  the  question  has  arisen,  unless  it  be 
in  Minnesota,  and  they  are  held  to  be  unlawful  in  England ' 
and  in  a  somewhat  earlier  case  it  was  said  that  "no  case  has 
been  cited  where,  upon  a  proper  showing  of  facts,  an  unsuccess- 
ful appeal  has  been  made  to  a  court  of  chancery  to  restrain  a 

I  Thomas  •.  Cincinnati,  etc.,  R.  Co.,  02  Fed.  803.  It  may  be  noted  that  in 
the  State  of  Minnesota,  boycotting,  which  was  allowed  in  the  ease  of  Bohn  Mfg. 
Co.  t.  HoUis,  M  Minn.  223, 66  N.W.  11 19.  was  held  to  be  properiy  enjoined  in  tha 
bte  ease  dQn^«.Bailf*iBg  Trades  Coundl,  91  Bfinn.  171, 97  N.W.  608.  8m 
■bo  E»te  •.  FrodoM  BnhMtas,  79  Bfinn.  140, 81  N.W.  787. 


286       LAW  or  TBI  IMFLOTlfBNT  OF  LABOR 


boToofet"!   Whito  lo  nryqjfag  %  itatemaat  fa  not  aoir  poe- 
Bible,  it  remains  true  that  bqyeottt  an  fagrmort  eourte  ImU  un- 
lawful even  without  pubtte  dbkurbaaoe,  phymoal  injuiy,  or  direct 
threats  of  attacks  on  pemn  or  {voperty;*  since  "the  use  of 
the  word  'boycott '  is  itself  a  threat,  and  the  distribution  of  boy- 
cott notices  is  intended  as  a  menace,  intimidation,  and  coercion." ' 
Where  the  ooadon  consisted  only  in  the  enforcement  of  fines 
on  memben  of  the  ■■ociatloa  oonduoting  the  boycott,  it  was 
atill  held  to  be  unlawful,  ifaue  it  wai  no  ka  an  unlawful  inter> 
ferenoe  with  buaineii  beeause  acoompHriied  by  the  enf oioement 
of  ooerdve  finee  on  memben  than  if  it  had  been  aooomplfahed 
by  coercive  measures  against  nonmemben  to  compel  them  to 
aid  in  the  boycott ;  and  the  fact  that  there  was  an  initial  agree- 
ment by  all  the  members  was  not  regarded  by  the  court  as  war- 
ranting a  finding  that  the  continued  withholding  of  patronage 
was  also  vohmtary,  when  the  failure  to  do  so  would  have  re- 
sulted in  a  heavy  fine; «  the  impoaition  <rf  fines  on  nonmembers 
fa  unlawful.* 

It  is  evident  that  it  fa  the  coercive  feature  of  the  boycott 
that  discredits  it  so  emphatically  in  the  great  majority  of  the 
courts.  The  mere  refusal  of  individuals  to  deal  would  not  be  a 
violation  of  law,  since  individuate  acting  independently  cannot 

>  CMey  V.  Cincinnati  TypognphlMl  Uaioa.  U IW.  185. 

•  Bmt  f.  EMex  Trades  Counca.  53  N.J.  Eq.  101. 30  AU.  881 ;  March  t..  Brick- 
IMW,  etc.,  79  Conn.  7. 63  Atl.  281 ;  Shine  Fox  Bros.  Mfg.  Co..  166  Fed.  367, 86 
C.C.A.  311 ;  Purvis  v.  Carpenters  &  Joiners,  214  Pa.  St  S48, 68  Atl.  586. 

fl^l^T^  ••  ^^'y  Teamsters'  Proteetiv.  Union. 

118  Mioh.  497. 77  N.W.  18 ;  CHsgr    On.  T^.  Union,  supra,  etc. 

M  i^-2r""  ^»  AtL  607 ;  Martdl  •.  WWt^  18S  BCm..  268. 69 

«J  !!!?^''  •  HfachcUir.  219 m,  m,  n  N.E.  47;  BuA...  Riy.  128  Mo.  App. 
990. 107  S.W.  408 ;  Unit«l  8tMw  «.  Bddb.  168  fW.  911. 


LABOR  DUUWVWB 


287 


eoDnpin  nor  eaa  they  intfanidaie  the  publie  Mtiag  ftloDS.*  "It 
hat  been  decided,  however,  that  while  euoh  aetion  would  not 
be  mlawfiil  by  an  indhridnal,  a  eomUnatkm  and  a  eonqiiraey 
to  afffffmp?"*  the  purpoee  would  be  an  illegal  act."  *    In  the 
Hopkins  case  it  was  said  that  the  definition  of  a  boycott  was 
not  essential,  since  the  evident  purpose  was,  even  if  without 
violence,  to  so  act  by  concert,  force  of  numbers,  and  exciting 
the  fears  of  the  timid,  as  to  compel  many  persons  to  surren 
their  freedom  of  action  and  submit  to  the  dietatioii  of  othnr 
the  management  of  their  private  busfneei  affaire.  "Atema^ 
law  every  person  has  hidividually,  and  the  public  has  abo 
leetively,  a  rif^t  to  require  that  the  course  ci  trade  shoul>- 
ks^  free  from  unreasonable  obstruction ;  "  *  nor  can 
ordinary  methods  of  the  boycott  be  justified  as  matter  of 
competition;*  since  the  relations  involved  are  not  the  f 
trade  competitors  engaged  in  rivalry  for  a  market  for  n 
products;  inducing  one's  employees  to  leave  his  servii  ,  <« 
interfering  with  the  employment  of  wOTkmen,  (ox  the  piirpuse 
(tf  crippling  hie  bttsineae,  yAum  the  oreuaukixon.  is  Mi  ilerif 
engBfed  in  any  buanees,  competitive  <a  otherwise,  ai;  w 
need  of  labor,  its  only  object  being  to  compel      eaq^yer  t» 

I  LohM  PMant  Door  Co.  t.  Fudle,  216  Mo.  421, 114  S.W.  Qb  . 

*  Ozley  Stave  Co.  v.  Coopen'  International  Union,  72  Fed.  605,  citing  Arthur 
t.  Oakee,  63  Fed.  310;  affirmed  in  Hopkina  w.  Oxley  Steve  Co.,  88  Fed.  012, 
38  CCA.  00 ;  aee  also  Lohae  Patent  Door  Co.  •.  Fuelle,  aupro. 

*  BMe.  TMtde  Unioiu.  dted  with  approval  in  Loewe  w.  Lawlor,  208  U.S.  274, 
28  Sop.  Ct  801;  Pmiagtoo  «.  KnelMliff.  mpra;  Jenqr  City  Friatinf  Co.  t. 
Caaaidy.  63  N  J.  £0.700^58  AtL  380;  Bnama.  bidiHtiid  Wt^nnolthe  W«id. 
aupro,  etc. 

*  Ifaidi  c  BtMfaqm,  ete..  tupra;  Qwtwt  Jodm  OUmi  Co.  t.  Olaas  Bottle 
Blowera,  72  N.J.  Eq.  663,  66  Atl.  963;  My  Maryland  Lodge  ».  Adt,  100  Md. 
238, 89  AtL  721 ;  per  contra,  J.  F.  Parkinson  Co.  ».  Building  Trades  Councfl, 


288        LAW  OP  THE  EMPLOYMENT  OF  LABOR 


concede  the  desired  terms  to  the  orgMitMittoa,  ii  nOd  not  to  be 

the  competition  which  the  law  recognises  or  upholds.  Nor  it 
the  publication  of  boycott  notices  within  the  protection  of  the 
right  of  free  speech  and  a  free  press,*  since  with  the  right  of 
free  speech  there  is  a  guarantee  of  other  rights  and  liberties,  and 
H  is  ft  majdm  of  j  or'sprudenoe  that  each  one  must  so  use  his  own 
rights  as  not  to  infrinfe  upon  the  rights  of  another;*  and  it 

has  been  said  that  it  would  be  stnufs  indeed  if  the  right  of  free 
speech  could  be  used  to  sustain  the  carrying  mit  (tf  an  unlawful 
and  criminal  conspiracy.'  It  has  been  oontended  against  this 
view  that  the  restraint  of  publication  cannot  be  effected  by 
the  courts,  since  courts  will  not  mterfere  with  the  publication 
of  a  libel,  but  will  leave  the  parties  to  their  freedom  of  action, 
subject  to  liability  for  the  consequences.*    But  "there  is  a 

'  Loewe  r.  CaUfornla  SUte  Fed.  of  Labor,  180  IM.  71 ;  Cmap  f.  Com..  84 
927.  «  S.E.  62U ;  Shin.  Fm  Bro*.  Mfg.  Co..  «.p«,.-  Beck  Ry.  Teamstew. 
Plot  UsioB,  tupn;  My  Marylaad  Lodge  t.  Adt.  supra;  Buck's  Stove  A  Range 
Co.  ».  American  Fed.  of  Labor.  35  Wash.  L.  R.  797 ;  Huttig  8Mh  A  Door  Co  « 
FueUe.  143  Fed.  363 ;  and  see  Loewe  t.  Lawlor,  tupn. 

•Joidahl  Hayda.  1  Cal.  App.  909.  83  PM.  1079.  "WhAe  our  repubUcan 
SOvmiBMit  guarantees  the  right  to  pursue  one's  own  happiness,  yet  that  gov- 
ernment is  charged  with  the  duty  of  protecting  others  than  appeUant  in  the 
pursuit  of  their  happiness,  and  hence  the  inaUenable  ri^t  to  purrae  one's  own 
happiness  must  necessarily  be  subject  to  the  same  right  in  aU  others.  Hence, 
when  thi  t  right  is  asserted  in  such  a  manner  as  to  conflict  with  the  equal  right 
to  the  same  thing  in  others,  it  ia  not  an  inalienafaie  li^t  at  all,  bot  b  •  wrong  " 
Townsend  v.  btate.  147  Ind.  624,  47  N.E.  19. 

•  Thomas  e.  Cincinnati,  etc.,  R.  Co.,  ^2  Fed.  808. 

*  Mant  A  Haas  Co.  v.  Watson.  168  Mo.  135. 67  S.W.  391 ;  Lindsay  ».  Montana 
Fed.  of  Labor.  «upro.  In  the  former  case  it  was  said  that  there  was  no  authority 
under  the  consUtution  for  a  distinction  between  pneeedinci  to  enjoin  the  pub- 
lication of  a  Ubel  <ind  one  to  enjoin  pubUcations  of  any  other  sort,  however  in- 
jurious. '•  No  halfway  bouse  stands  between  prevention  aud  absolute  freedom. 
...  The  two  ideas,  the  one  of  absolute  fieedom  to  say.  write,  or  puUish  what- 
ever he  wiU  on  any  subject,  coupled  with  the  taapouiUUty  tbenfcn-.  and  the 


LABOR  DIBPUTKC 


289 


dear  diitinetion  between  itiHa  to  enjoin  the  ]NiUk»ti<m  ci  a 
libel,  and  one  to  restrain  aets  to  intimidate  persons  from  dealing 
with  Another.  In  the  one,  when  the  acts  complained  of  consist 
of  such  misreprr^entations  of  a  business  that  they  tend  to  its 
injury  and  damage  to  its  proprietor,  the  offense  is  simply  a  libel ; 
and  in  this  country  the  courts  have  with  great  unanimity  held 
that  they  will  not  interfere  by  injunetifm,  but  that  the  iqjured 
pvrty  BMiit  rely  vpoa  his  ranedy  at  law.  On  the  e<mteary, 
iHien  the  attempt  to  injure  oonsiita  of  aets  or  wnrds  whieh  will 
operate  to  intimidate  and  prever*  "  "  customers  of  a  party  from 
dealing  with  him,  or  laborero  '*  .orking  for  him,  the  courts 
have,  with  nearly  equal  un^.  ^y,  interposed  by  injunction."  * 
A  distinction  is  sometimes  .awn  between  what  are  classed 
as  primary  and  secondary  boycotts.  In  the  former,  the  action 
b  directly  against  the  (trading  employer,  the  members  of  the 
orgsnisaUon  rimj^y  withholding  thdr  patronage  as  laborm  or 
purehasors,  and  inducing  thdr  fellows  to  do  the  same.  The 
mere  withholding  cS  patronage  or  refusal  to  trade  is  not  unlaw^ 
ful,*  and  the  announcement  or  publication  of  such  a  purpose  is 
within  the  rights  of  the  persons  agreeing  together,  even  though 

othtr  ide*  of  preventin*  any  mieh  free  apeech,  free  writinc  or  free  publieation, 

euinot  coesiat."  The  fact  that  the  defeadanta  were  without  funds  or  property 
that  could  be  attached  in  a  damage  auit  waa  aaid  not  to  affect  the  aituation, 
though  it  left  the  plaintiff  compsay  open  to  nifoooa  attaeka  with  no  possibility 
of  recovery  or  redress.  Thia  ease  was  cammented  on  adversely  in  Rocky 
Mountain  Tel.  Co.  •.  Montana  Fed.  of  Labor,  157  Fed.  821 ;  and  see  Lohse 
Patent  Door  Co.  v.  Fuelle,  supra. 

>  CoBur  d'Alene  Consol.  Min.  Co.  •.  Miners'  Union,  SI  Fed.  260 ;  and  see 
Beek  t.  Ha&way  Teamsters'  Union,  supra;  Casey  t.  Cincinnati  Typ.  Union,  45 
FW.  185 ;  Gray  v.  Building  Trades  Council,  tupra. 

*  Toledo,  etc.,  R.  Co.  v.  Penn  *  ".■>..  '  i  P-d.  730;  State  v.  Glidden,  55  Conn. 
40, 8  Atl.  890 ;  Pierce  «.  SUbIt  sian'a  Umnw,  ^lit:  CaL  70, 108  Fke.  823;  Hagr  t. 
Wibon.  282  lU.  389.  83  N.E.  91' 


290        LAW  OF  THB  EMPLOTMENT  OF  LABOB 


it  results  in  the  injury  of  the  penK»  afniiiit  irbaai  the  sets  are 

directed.^   And  it  will  follow  that  persons  freely  joining  m  such 
withholding  of  business  intercourse  will  not  by  their  acts  incul- 
pate either  themselves  or  the  original  actors.   But  such  is  not 
the  usual  course  of  the  boycott ;  and  indeed  the  definitions  usu- 
ally adopted  do  not  cover  such  acts,  but  are  applicable  only  to 
the  second  class,  or  the  so-called  secfrndary  boycotts  (sometimes 
called  compound  boycotts),  which  are  foaeraUy  umtarstood  to 
mean  comI»natioDs  to  harm  one  pencm  by  oowdng  otiiera  to 
harm  him,  as  already  set  forth  above.   Exceptions  to  the 
practically  uniform  declaration  as  to  the  illegality  of  such 
boycotts  are  to  be  found  where  the  employer  extends  or 
seeks  to  extend  his  activities  by  combinations  with  others 
of  his  class.    Thus  where  an  employer  whose  men  are  on 
strike  sends  material  to  be  worked  up  by  other  employers, 
H  is  justifiable  f«r  sympathies  with  the  <Mnguiid  strikers  to 
withhold  service  frmn  these  oitor  emjioym  f the  purpose  of 
inducing  them  to  r^nun  from  dealing  with  him,  and  so  seek  to 
isolate  him  from  business.    'To  whatever  extent  employers 
may  lawfully  combine  and  codperate  to  control  the  supply  and 
conditions  of  work  to  be  done,  to  the  same  extent  should  be 
recognized  the  right  of  workmen  to  combine  and  codperate  to 
control  the  supply  and  the  conditions  of  the  labor  that  is  nec- 
essary to  the  doing  of  the  work."«   The  supreme  court  of 

>  Gray  e.  Building  Trades  Council,  aupra;  Paople  t.  MeFkriia,  80  N.Y.  Supp. 
£97, 43  Miac.  691 ;  Pieroe  t.  Steblemen'a  Unioii,  nipn. 

•  Iron  Midden'  Unfcm  ».  AlUi<%Blmcn  Co.,  188  Fed.  45, 91  CCA.  631.  See 
also  Sinsheioier  v.  United  Garment  Workers,  77  Hun,  21S,  28  N.Y.  Supp.  321, 
where  relief  was  denied  an  employer  who  was  held  not  to  have  "oome  into  court 
with  dean  hands,"  haviac  UsMsif  «Bpiojr«d  BWthods  ■bnilar  to  tiww  of  which 
bo  ooBplaiawL 


LABOB  DISPUTSB 


201 


CiBfomui  "reeogniaM  no  mbBtaatUl  distinetioo  between  the 

BO-called  primaiy  and  secondary  boycott,"  permitting  ttakan 
not  only  to  withhold  their  own  patronage,  but  also,  "  by  threat 
of  like  boycott,  to  coerce  others  into  doing  so."  However,  it 
held  illegal  any  act  which  tends  to  impair  the  right  of  free  action 
by  individuals  by  means  passing  beyond  moral  suasion  and 
playing  by  intimidalion  ap<»i  the  physical  fears.^  A  dissent- 
ing <^)inkm  fai  tiie  Pioroe  case  pointed  out  what  is  iu>  doubt  a 
fatal  weaknen  ia  tiie  porition  taken  by  the  maj<mty,  ccmtend' 
ing  that  the  use  of  any  means  constituting  duress,  menace  or 
undue  influence  would  render  the  boycott  unlawful.  "  WhetlMr 
this  coercion  or  compulsion  comes  from  fear  of  physical  violence, 
as  in  the  case  of  picketing,  or  from  fear  of  financial  loss,  as  in 
the  'secondary  boycott,'  or  from  fear  of  any  other  infliction,  is, 
in  my  opinion,  immaterial,  so  long  as  the  fear  is  sufliciently 
potont  to  contrd  the  aeti(m  ci  those  upon  ^om  it  is  cast." 

In  a  few  states  boycotting  is  fortnddem  by  statute,  the  tarn 
"boyoott "  being  used  f«r  tlw  most  part  without  definition; ' 
while  in  two  other  states  eoncerted  refusal  to  trade  with  dealers 
or  manufacturers,  or  concerted  action  to  interfere  with  their 
business,  is  made  an  offense.'  The  effect  of  these  statutes  is 
slight,  since  they  are  little  if  any  more  than  a  declaration  of  the 
rules  of  the  common  law.  "Neither  at  common  law  nor  under 
statutes  modifying  the  common  law  doctrine  is  it  lawful  for 
winrkmen  to  wmlSm  to  injure  anothor's  buaness  by  causing 
hfa  enqikqrees  to  leave  his  sorviee  by  hitimidation,  threats, 

*  PieiM t.  StefalMMB'*  Union,  lupn;  approTing  PuUnian  •.  Building  TmSm 
Couneil,  rapra,  ud  «Mns  M  •  mppottins  eM*  Lindnjr «.  Montana  IMontiM 
of  Labor,  tupra. 

*Aia..Ooda,no.6MSi  Colo..  Asto  190S,  dk  7« ;  m.,  Aota  ItOC.  eh.  88. 


292        LAW  OF  THE  SMPLOTMENT  OF  LABOR 


molestation,  or  coercion."  ^  They  have  the  ^eet,  however, 
of  declaring  the  policy  of  the  state  in  ngud  to  any  poesible 
departure  from  the  rule  laid  down. 

Besides  the  statutes  prohibiting  boycotting,  a  number  of 
statutes  have  been  referred  to  in  boycott  cases  as  violated  by 
the  acts  ccnnplained  of.  Thus  a  statute  ci,  Wjaconsin,*  which 
penaliaeB  oombinationi  fw  the  puipoee  of  willfully  or  malidouBly 
iiquriiig  the  trade  m  buBineag  of  another,  was  hdd  to  be  oon- 
8tituti<mal  and  i^j^cable  in  a  case  of  a  combination  of  a  number 
of  managers  of  newspapers  to  boycott  a  rival  publisher.*  The 
legislature  was  held  to  h  ;;,ve  the  power  to  make  the  question  of 
motive  a  material  one ;  nor  can  the  right  to  punish  malicious  acts 
be  denied  because  they  are  to  be  followed  and  worked  out  by 
conduct  which  might  have  been  lawful  if  not  preceded  by  such 
acts.  This  corresponds  to  the  principles  controlling  in  the 
doctrine  of  con&v'  racy,  whether  under  statute  or  common  law.^ 
A  similar  statut(j  of  New  York  *  was  held  to  have  like  applica- 
tion in  a  boycott  case  in  which  there  was  neither  violence  nor 
threat  of  violence,  where  the  combination  was  against  builders 
who  should  buy  materials  of  any  dealer  not  approved  by  the 
union.* 

The  federal  antitrust  act '  was  made  the  basis  of  an  action 
•gainst  a  labor  organisation  which  had  largely  reduced  the  sales 

'  8  Cyc.  630,  cited  with  approval  in  Branson  «.  Industrial  Worken  of  the 
WMid,  ntpra.  •  A.8.,  sec.  4480a. 

*  Aikens  «.  Wisconsin,  195  U.S.  194, 25  Sup.  Ct.  3. 

*  Sec.  118.   And  see  Purington  v.  Hinchdiff,  supra. 

•  Penal  Code,  sec.  168,  subd.  6. 

•  People  t.  MoFarlin.  swpro.  See  also  Branson  v.  Industrial  Workers  of  the 
W<^d,  supra,  where  •  boyeott  was  nndertaken  to  compel  an  employer  to  union- 
ise his  plant,  the  bojrooM  bciat  eUaad  as  a  criminal  conspiracy  under  sec.  4751, 
ex.  of  Nevada.  »  26  Stat.  209.  U.S.  Comp.  St.,  p.  aaOO. 


LABOR  DISPUTBS 


203 


of  tlw  oomfiabasBt*B  produete  by  boycotts  in  ▼ariofos  ptrto  of 
tiie  United  States,  and  the  court  found  thal^there  was  a  punidi- 
able  combination  or  conspiracy  to  interfere  with  trade  or  com- 
merce among  the  several  states,  as  prohibited  by  the  statute.^ 

Another  federal  statute  that  has  been  invoked  is  the  provision 
forbidding  attempts  to  defraud  by  the  use  of  the  United  States 
mails.'  In  this  case  a  fine  was  assessed  against  a  manufactur- 
ing company  by  a  union  because  of  a  refusal  <A  demands  to 
emfdoy  only  union  workmen.  A  boycott  was  declared  against 
the  Cimipany's  products  and  notice  fhsteoi  was  mailed  to  its 
customers.  This  was  held  to  be  a  violation  of  the  statute, 
whether  viewed  as  a  means  of  inducing  the  payment  of  the  fine 
to  escape  the  boycott,  or  as  a  means  of  maintaining  the  boycott 
to  the  injury  of  the  complainant's  business.' 

Skction  123.  Blacklists.  —  A  blacklist  is  in  brief  a  list  of 
persons  marlced  out  for  unfavorable  discrimination  in  business 
m  social  rdations.  As  the  term  is  generally  used,  it  applies  to 
Ikts  Icept  by  groups  or  associations  of  employers  for  their  mutual 
information  as  to  workmen  to  whom  employment  will  be  re- 
fused on  the  basis  of  certain  facts  or  alleged  facts  stated  or 
assumed  in  connection  with  the  placing  of  the  names  on  the 
Usts.  A  mere  exchange  of  information,  leaving  each  employer 
free  to  act  on  his  own  judgment  in  the  case,  is  not,  in  the  absence 
of  statute,  illegal.*  It  has  aheady  been  stated  that  the  givmg 

<  Loewe  v.  Laidor,  208  U.S.  274,  28  Sup.  Ct.  301.   8m  alao  Bndt't  Stow  * 
Bance  Co.  *.  American  Fed.  of  Labor,  37  Waah.  L.  B.  838. 
■  R.J.,  aee.  6480,  U.S.  Comp.  St.,  p.  3096. 
•United  States  v.  Rabh,  163  Fed.  911. 

«Willia  f.  MuMiogee  Mfg.  Co.,  120  Oa.  697,48  S.E.  177;  Boyer  t.  Waatan 
Uniim  Tel.  Co..  134  FM.  240;  Wabaah  R.  Co.  t.  Tooaf,  1«3  Ind.  103. 00  N.S. 
lOeS;  Bakar t.  Xaa.  Co.  (Sy.).  64  S.W.  913. 


294        LAW  OF  THB  BMPLOTMENT  OF  LABOB 

ij  of  reconunendations  or  clearance  cards  at  the  terminatkm  of 

employment  is  not  obligatory  on  the  employer  (sec.  14) ;  but 
in  any  information  which  an  employer  oflFers  he  must  avoid 
}!  perversion  of  facts,  as  he  will  be  liable  for  false  or  unfair  stete- 

i  meats  conceming  his  workmen.^  The  same  is  true  as  to  state- 

ments made  maUdouaiy  or  for  purposes  of  wrongful  interference 
witii  the  relation  of  emidoyer  and  employee;  and  whore  it 
j  appears  that  one  is  blacklisted  "  without  cause  at  provocatioo," 

I  a  suit  for  damages  will  lie  if  it  is  shown  that  the  person  so  black- 

listed was  thereby  cut  off  from  opportunity  for  en^yment,  to 
his  injury.* 

It  has  been  said  that  a  discharged  employee  cannot  recover 
damages  against  one  blacklistmg  him  and  so  procuring  his  dis- 
charge, even  thou|^  tbe  act  was  malicious,  unless  there  was  co- 
ercion or  deception,  <»using  the  discharge  against  the  will  or 
contrary  to  the  purpose  of  the  emi^oyer,*  but  this  view  is  not  in 
harmony  with  what  appnn  to  be  the  better  and  more  common 
(qanion;*  and  where  a  workman  is  blacklisted  by  a  former 
employer,  and  others  in  association  wit',  the  employer  refuse 
j  employment  because  of  the  information  given,  the  agreement 

» Waito  «.  Muaoofee  Mfg.  Co.,  mpra;  Hundley  t.  LouuviUe  ft  N.  R.  Co.,  106 
Ky.  W7,48  8.W.  420 ;  St.  Loidi  S.W.R.  Co.  t.  mxon  (Tex.  Civ.  App.),  126  S.W, 
338.  See  alio  Davie  ».  New  England  R.  Pub.  Co..  203  Mass.  470, 89  N.E.  565. 
(This  case  involved  the  omission  of  a  firm  name  from  a  list  of  all  local  "npo* 
table  express  companies.") 

»  Mattison  t.  R.  Co.,  3  Ohio  Dec.  626 ;  WiUner  e.  Sflverman,  109  Md.  341.  71 
Atl.  962 ;  Hundley  v.  LouuviUe  ft  N.  R.  Co.,  «upro;  Rhodes  ».  Oranby  Cotton 
Mills  (S.C.).  68  8.E.  824 ;  see  also  Willett  Jacksonvflte,  ete..  B.  Co.  (U.8.  C. 
C,  1896,  S.  D.  of  Florida)  in  which  the  plaintiff  obtained  Judgment  in  the 
•moimt  of  1 1700  for  loss  of  employment  with  another  company  on  account  of 
•  letter  written  by  his  former  employer. 

•  Bakw  f.  Ins.  Co.  (Ky.),  67  S.W.  967. 

«  Jojree  •.  GiMt  Notthan  B.  Co^  100  Iffam.  385. 110  N.W.  976;  and  eases 
ia  aotoA  Mpra. 


1 


LABOR  DIBPUTtt 


296 


will  be  condemned  as  a  conspiracy  if  the  circumstances  show  it 
to  be  injurious  and  without  warrant  in  fact.^ 

A  number  oi  states  have  statutes  i«ohibiting  blacklisting.' 
The  eonstitutionali^  oi  these  statutes  has  be«a  maintained, 
ibmt  purpose  being  to  protect  employees  in  their  natural  and 
constitutional  right  to  sell  their  labor  and  acquire  property.' 
The  Indiana  statute  refers  only  to  the  blacklisting  of  discharged 
employees,  and  is  therefore  held  not  to  be  applicable  to  cases 
where  one  voluntarily  left  service;*  while  in  construing  the 
Minnesota  statute,  which  names  both  those  who  leave  volun- 
tarily and  those  who  are  discharged,  the  court  said  tibat  the 
fact  that  an  employee  left  his  place  volimtarily  does  not  i^ve  the 
onployer  the  right  to  prejudice  his  employment  elsewhere, 
and  that  it  was  not  a  sufficient  answer  that  the  employer  may 
have  cause  for  nxaking  the  statement,  or  that  it  may  be  to  the 
mutual  advantage  of  all  employers  in  an  association,  since  if 
such  were  the  facts  in  the  case,  they  would  not  bar  the  action 
but  would  be  available  only  as  a  matter  of  defense.' 

Sbction  124.  Interference  toith  Employment,  IntimidaHon, 
etc  —  Not  falling  specifically  under  any  of  the  forgoing  heads 
and  invcdving  forms  of  collective  action,  thus  differentiating 
them  in  some  respects  from  the  acts  of  individuals  already 
eonridned  (see.  15),  there  are  yet  to  be  noticed  aome  forms  oi 

■Rhodea  t.  Oimnby  Cotton  Mflla,  tvprti.  (Flaintiir  was  bUckliated  h  • 
■triker,  and  so  published,  although  it  waa  clearly  shown  that  he  was  not.) 

*Ala.,  Code,  aec.  0398;  Conn.,  Acts  1909,  ch.  153;  Ind.,  A.S.,  sec.  7076; 
lOaa.,  ILL.,  mo.  SOOfT ;  N.C.,  AeU  1909,  A.  858 ;  U.&,  SO  Stat.  424,  C<Mnp.  L., 
p.  3206. 

*  State  •.  Justus,  86  Minn.  279, 88  N.W.  769 ;  St  Louia  8.  W.  R.  Co.  w.  Hizon, 
mipra;  Joyce  •.  Great  Northern  R.  Co..  Mqm. 

*  Wabaah  R.  Co.  v.  Yoaag,  nqtrs. 
■  State  t.  Joatiu,  sujMk 


206       LAW  OF  THE  KMPLOTMINT  OF  LABOR 


intarference  with  the  employment  of  labor  or  the  conduct  of 
bunnen  by  methods  iHiioh  the  la  v  does  not  sanction.  It  haa 
been  seen  that  the  courts  will  take  note  oi  iiquries  inflicted  or 
threatened  where  they  follow  the  unwairanted  and  improper 
exercise  of  such  powers  as  are  possessed  by  a  collective  body, 
even  though  there  be  neither  fraud  nor  coercion  by  violent 
means;  and  the  unjustifiable  mterference  by  way  of  persuasion 
or  the  enticement  of  workmen,  involving  the  violation  of  a 
contract  not  to  become  members  of  a  union,  has  been  held  to 
entitie  an  employer  to  an  iigunction  against  membos  of  a 
labor  union  who  were  seeking  to  unioniae  his  plant ;  ^  but  where 
such  a  complaint  is  made,  and  it  appears  that  the  employees 
are  in  fact  members  of  the  association  complamed  of,  the  right 
of  or  !s  to  confer  with  their  membership,  and  the  right  of 
workman  to  act  smgly  or  collectively  in  the  matter  of  seeking 
improved  conditions  of  employment,  will  operate  to  prevent 
the  issue  of  an  injunction  against  counseling  and  advising  on 
such  subjects.' 

Employees  who  are  members  ci  a  union  may  take  the  initia- 
tive and  procure  the  restraint  of  a  rival  vadmi  which  seeks  to 
procure  their  discharge  and  the  employment  of  no  others  than 
members  of  such  rival  union.*  The  contrary  view  was  taken  in 
a  case  L       "h  it  was  said  that  the  object  of  the  rival  union  to 

ure  r  ;  /ment  for  its  own  members  was  su£Bcient  justifi- 
cation iMjts  leading  to  the  discharge  of  the  complainants, 
though  there  was  a  strong  dissenting  opinion.*  In  this  case  the 

*  Flaociu  ».  Smith,  109  P».  St.  128, 48  Ati.  8M ;  mtohmu  Cod  Co.  t.  MitcheU. 
172  Fed.  983.  >  Wabuh  B.  Co.  i.  HKUuhaa.  131  Fbd.  MS. 

*  Fiut  t.  wood%  ire  ifMi.  m,  sr  tfx.  mi  bhouhi  •.  wum.  sm  Pk. 

St.  79. 66  Atl.  887. 

*  Nalioad  Ptotwtht  Art's.  •.  OnauaiBi,  170  N.Y.  S18, 68  N  Jt  860. 


LABOR  D18PUT18 


207 


majority  of  the  court  seems  to  have  lost  sight  of  the  rule  of  law 
that  one  man's  ri|[^ta  end  idiere  another's  hepn.  "An  inter- 
ference by  a  combination  ot  porsons  to  obtain  the  discha^  of  a 
workman  because  he  reuses  to  comply  with  their  wishes,  for 

their  advantage,  in  some  matter  in  which  he  has  a  right  to  act 
independently,  is  not  competition."  ^  The  right  to  seek  em- 
ployment is  an  inherent  one,  and  an  association's  noninter- 
ference with  a  worlunan  in  the  exercise  of  that  right  is  in  no  sense 
a  groimd  for  claimiag  that  such  an  association  had  protected 
him  in  his  employment  or  had  conferred  any  legal  benefit  upon 
him,  since  it  had  no  right  to  interfere  with  him  in  this  respect;' 
and  an  unwarranted  e9q)ulaon  of  a  mmber,  leading  to  his  dis- 
charge  from  emplojrment,  will  support  an  action  for  the  recovery 
of  damages  for  causing  the  discharge.'  It  has  also  been  held 
that  a  labor  imion  maybe  enjoined  from  the  expulsion  of  mem- 
bers in  a  manner  intend  ad  to  improperly  influence  their  free 
action  in  the  matter  of  employment,  where  such  expulsion  is  a 
part  of  a  niunber  of  intimidating  and  imlawf  ul  acts.*  An  action 
for  damages  will  lie  where  a  nonunion  workman  is  shown  to  be 
maUdously  deprived  of  emplojrment  by  reason  of  the  action  of 
a  labor  (^(aniialion ; '  so  also  if  the  dischaq^  workman  was 

*  B«Ry  ff.  Donovan,  188  Mam.  858, 74  N.E.  808. 
»  Levin  t>.  Co^rove.  76  N.J.L.  344.  67  Atl.  1070. 

*  CunpbeU  •.  JohnMn,  167  Fed.  102. 92  C.CJk.  664 ;  Brennan  United  Hat- 
ten,  78  N J.L.  720, 66  Atl.  166. 

«  Connett  v.  United  Hattera,  76  N.J.  Eq.  202,  74  Atl.  188. 

■  Curran  v.  Galen,  162  N.Y.  33,  46  N.E.  297;  Perkins  t.  Psndleton,  90  Ife. 
166, 88  Atl.  96 ;  Beny  t.  Donovan,  atipro.  In  the  Curran  and  Berry  caaea  the 
diachaiie  waa  in  oonaequenee  of  contracts  with  enydoyers  to  employ  only  mem- 
ben  Ot  onions,  nsultinc  in  the  discharge  of  plaintiffs  from  rmjdoyment.  In  (ha 
ease  of  Perkins  «.  Pendleton,  the  court  said :  "  Merely  to  induce  another  to  leave 
an  employment,  or  to  diacharge  an  employee,  by  persuasion  or  argument,  however 
whimsical,  unrsasonabto,  or  absurd,  is  not,  in  and  of  itself,  unlawful,  and  we  do 


906     LAW  or  TBI  mnoTifiiiT  or  labob 


ft  nMmber  of  anotiMr  unk»,>  the  rule  of  law  being  that  any 
BuUdous  interforenoe  with  the  oootnet  reUtion  will  ground 
aaaetkmif  dMnatBoinMi.'  When  the  aetkn  of  *  vmioa  not 
only  interferes  with  the  tmsksytauki  of  the  farmer  iiMmben» 
expelled  without  just  cause,  but  also  seeks  to  oontrol  their  eon- 
duct  in  matters  of  public  duty,  an  added  reason  exists  for  re- 
straint against  further  interference,  while  Hamngnff  ^  be  al- 
lowed for  the  loss  of  employment.' 

The  interference  complained  of  may  be  of  a  more  general  sort, 
directed  agaiiMt  the  businea  ci  an  employer  by  way  of  con- 
ipiraey.  Where  there  »  an  agreanent  to  induoe  one's  em- 
I^yees  to  cease  mtk  and  to  refrain  from  woridng  until  stnne 
unauthorised  mandate  of  those  in  agreement  is  comi^ied  with, 
the  latter  tasy  be  held  and  punished  fw  omuqnraey.*  Whoe 

not  decide  that  such  interference  ma,y  become  unlawful  by  reason  of  the  de- 
fendant's malicious  motives,  bat  simply  that  to  intimidatfl  an  employer  by 
threats,  if  the  thre  re  ol  saeh  a  natme  ■■  to  iadiioe  thii  teeolt,  and  thsnbir 
eause  him  to  disc.  i  employee  whom  he  desired  to  retain,  and  would  hrnn 
letained  ezeept  foi      .  inlawful  threats,  is  an  actionable  wrong." 

'  Buddy  V.  Journeymen  Plumbers,  79  N.J.L.  467,  78  Atl.  742. 

>  Annie  f .  Chicaao  R.  Co..  161  U.S.  1, 14  Sup.  Ct  240. 

•  Sehneider  e.  Joonieymen  Plumbers  etc.,  lie  L*.  270, 40  So.  700.  In  thie 
case  members  of  a  union  who  were  appointed  bjr  the  masror  as  examiners  of 
plumbers  applying  for  certificates  in  the  city  <a  New  Orieane  were  fined  and  ex- 
pelled for  not  choosing  as  inq>eetor  a  member  indicated  by  the  onioii.  They 
were  also  d^ved  of  employment  by  reason  of  the  loss  of  membership.  The 
iuiigment  in  this  case  awarded  restoration  of  membeiahip,  remission  of  the  finee, 
damages,  actual  and  punitive,  and  an  injunetioa  affdufe  farther  intsrfswaee 
with  their  employment. 

SUte  t.  Daltra.  134  Mo.  App.  617, 114  S.W.  1132.  (The  members  of  two 
labor  unions  combined  to  secure  the  payment  of  a  fine  levied  on  an  employer.) 
Employing  Printers'  Club  ».  Doctor  Bloaser  Co.,  122  Oa.  609,  60  S.E.  363.  (An 
association  of  printers  and  pabUdim  eomUned  to  fix  prieea  and  prevent  compe- 
tition, and  levied  a  fine  against  the  Doctor  Blosser  Co.  for  accepting  work  in 
▼lolatfcm  ot  the  agreement.  On  his  refusal  to  pay  the  fine  his  business  waa 
istecfmd  with  and  his  empi<qrees  eoeroad  into  withdrawing  from  his  service.) 


LABOB  DBPUTM 


2W 


intimidation  and  violence  are  used,  there  is  of  ooutm  do  queitioii 
of  the  illegaUty  of  the  aeta  no  matter  how  lawful  the  objeet  in 
viewmiihtbe;*  and  nnioni giving finaadal  topport  to  striken 
•nd  pkketa  guilty  of  raeh  unlawful  oonduet  will  be  tl^emedyee 
KaUe  tor  so  aiding  and  abetting  it.* 

A  number  of  statutes  have  been  enacted  directed  to  the 
subject  of  interference  with  employment,  conspiracy  against 
workingmen,  intimidation,  etc.  Some  of  these  apply  to  specific 
emplojrments,  as  those  prohibiting  interference  with  or  the  in- 
timidation or  molestation  of  railroad  employees,*  or  seamen.* 
Mora  o(»nmonly,  however,  the  acts  are  of  gnoeral  i^ttcati«m 
and  pndiibit  oonqriraoy  against  or  interferenoe  with  any  lawful 
business  by  force  or  by  thrMte  of  violence  to  person  or  prop- 
erty ; '  or  the  use  ot  means  calculated  or  intended  to  intimi- 
date or  compel  one  against  his  will  to  do  or  refrain  from  doing 
any  act  which  he  has  a  legal  right  to  do,  or  injury  or  threats  of 
injury  to  person  or  property  with  intent  to  intimidate  any 
person;*  or  threats,  violence,  or  intimidation  preventing  or 
attempting  to  prevent  any  person  from  engaging  or  remaining 
in  any  lawful  bumness,  employment,  or  occupation.'  These 
laws  for  th»  most  part  embody  the  principles  of  the  otHnmon  law 
rdative  to  conq>iracy  or  the  unlawful  mfringonent  on  the  ri|^ts 
of  othos  by  ooerdim  or  other  iiaptopee  means.  While  they  are 

1  Porrte  f .  C^upenten  MidJoiiMn,  314  Fk.  St  848. 88  AtL  885. 

•  Jones  •.  Maher,  116  N.Y.  Supp.  180,  62  Misc.  Rep.  388. 

•  Del.,  R.C..  p.  028,  aec.  3 ;  lU..  R.S.,  cb.  114.  Mct.  109, 110;  Ey.  St,  ne.  808. 
«La.,  R.L.,  sec.  044. 

•  AUl,  Code.  sees.  6304.  «8M. 
•Conn..  Acts  1900,  ch.  202. 

»Ga.,  Pen.  Code,  sees.  123-126;  see  also  111.,  R.S.,  ch.  38,  e.^.  158,  189; 
Me..  Aots  1903,  ch.  127.  sec.  21 ;  Mass.,  AcU  1909.  ch.  814.  sec.  18;  N.Y.,  C.L.. 
^40^Me.8aO;  Wadi., Astt  1800. eh. 240, sw. 8^ 


800       LAW  or  TBI  nfPLOTMINT  OF  LABOB 


penal  in  form  and  effect,  rabjeoting  their  violfttort  to  peoaHlei 
of  finee  or  impriioiunent,*  their  vkdstkm  abo  operate!  to  give 
a  right  of  action  to  a  party  injured  by  the  unlawful  aet.* 

"When  such  an  injury  results,  from  the  execution  of  a  con- 
spiracy, it  is  the  wrongful  act  done  in  canying  out  the  concerted 
plan,  and  not  the  conspiracy  itself  which  furnishes  the  real 
ground  for  a  civil  action."   In  all  the  above  cases  the  defendant 
or  defendants  were  agents  or  members  of  labor  organisations, 
and  their  actions  were  regarded  aa  representing  the  force  and 
influence  of  numberti.  Thus  in  the  Flaeher  eaae,  it  waa  said  that 
"the  accused  was  presoit,  and  fwdeeeed  to  qwak  as  the 
authorized  agent  of  a  large  organisation. "  In  Wyeman  v.  Deady, 
"Deady  was  the  business  agent  and  so-called  walking  delegate 
of  the  defendant  union,  and  did  said  acts  not  only  with  the 
knowledge  and  approval,  but  by  the  authority  of  the  union,"  etc. 
This  fact  would  bring  the  acts  within  the  conuron  law  principle 
<rf  eonqnraey,  while  it  was  also  true  that  the  ac«s  were  unjusti- 
fiable interference  with  «nployment,  usually  by  violent  or  oo> 
ercive  means,  so  that  they  would  aiq^arently  have  come  under 
the  condemnation  of  the  law  without  statutory  provinon. 
But  as  remarked  in  another  connection,  such  statutes  have  at 
least  the  effect  of  declaring  the  policy  of  the  states  in  which 
they  exist,  and  so  have  a  measure  of  value. 

Sb'^ion  125.  Remedies  by  Suits  at  Law.  —  It  has  frequently 
appeared  in  the  foregoing  sections  that  persons,  employers  or 
«nployees,  may  recover  damages  for  injurious  interference, 
without  justification,  with  employment  ct  bushiess  by  acts 

>  3Ute  •.  Stockford.  77  Craa.  287. 58  AtL  709  ;  8te«e  t.  MoOm.  80  Coon. 
ei4, 69  Atl.  1060 ;  Fischer  t.  Stete,  101  Wi*.  23,  76  N.  W.  604. 

•  Wywnan  «.  Deady,  70  Conn.  414, 66  Atl.  129 ;  Carter  v.  Orter,  134  Mo.  App. 
146,  lU  8.W.  096. 


LABOR  DISWTEB 


301 


done  in  connection  with  labor  disputes;  and  it  ooljr  Nmaim 
under  this  head  to  iUustnle  briofly  the  maniMr  and  eite&'^i  of 
the  ^iidioation  of  this  rule  of  law. 

An  employer  is  entitled  to  a  judgment  for  damages  where  a 
union  has  unjustifiably  caused  injury  on  account  of  his  failure 
to  carry  on  his  business  according  to  the  methods  prescribed  by 
the  union.*   In  the  Carewcase  a  union  levied  a  fine  on  an  em- 
ploying stonecutter,  and  coerced  him  into  payment  by  procur- 
ing his  worlunen  to  leave  hun  until  he  was  unaUe  to  fill  hb  con- 
tracts, the  purpose  being  to  enforoe  the  oloeed  shop.  To  cmapA 
onetoyieldtoanillflc>l<l«niandinordertoaeeurei'  ^privilege 
of  carrying  on  his  busincM  was  said  to  be  unlawful,  if  not  actu- 
ally a  criminal  conspiraoy,  and  is  "a  species  of  annoyance  and 
extortion  which  the  common  lam  has  never  tolerated."  The 
judgment  included  the  repayment  to  the  employer  of  the  amount 
of  the  fine,  as  well  as  damages.   In  order  to  recover  a  fine  in  such 
circumstances,  it  must  appear  that  it  was  paid  under  coercion 
and  to  remove  an  actual  obstade  to  the  oonduet  of  businefls, 
once,  if  paid  voluntarily  or  without  duress,  it  will  not  be  recov- 
erable.' In  the  case  of  the  Old  Dominion  Steamship  Company, 
the  union  had  mterfered  with  the  shipping  of  sailors,  and  de- 
chtred  a  boycott  because  the  company  had  refused  to  pay 
Uborers  in  one  locality  the  rates  usuaUy  paid  more  skilled  men 
b  another  locality.   In  the  cases  of  the  F.  R.  Patch  Mfg.  Com- 

>  Carew  «.  Rutherford.  10«  Mmi.  1, 8  Am.  Rep.  287 ;  Old  Dominion  SA  Co.  t. 
MoEenna,  30  Fed.  48 ;  F.  R.  Patch  Mfg.  Co.  t.  Int.  lUi'n.  of  Machinirt^  n  Vt. 
394,  60  Atl.  74;  O'Ncil  ».  Behanna.  182  Pa.  St.  236,  37  Atl.  843;  Doremua  ». 
HeuieMy.  176  01. 608, 8?  N.E.  624 ;  Mooree  •.  Bricklayen'  Union.  10  Ohio  Dec. 
(Rep.)  645;  Branwo  t.  Ind»trfal  Worim  ol  the  Worid.  30  Ner.  270.96PM. 
864 ;  Thacker  Coal  4  Coke  Co. ».  Burke,  69  W.  Va.  283, 63  S.E.  161. 

I  Burke  t.  Fay.  128  Ko.  App.  690. 107  S.W.  408.  See  atoo  Ma«*  ».  Brick- 
by«n.  ttan  7»  Cooa.  7. 08  Ati.  891. 


808       LAW  or  TBI  mPLOTlflNT  Of  LABOB 


piBsr  and  ol  ».  Behaana,  oowdre  and  unlawful  means 
wvraiiaedtoiiiilaiBtlMdiBaiidioraMkingwoifaM  Inthe 
Doremus  eaie  the  Tkdatfon  of  oontraeti  wia  ptoennd  by  a 
laundrymen's  awoeiation  nekiiig  to  oompd  a  fmeral  advaooe 

in  price8.>  In  the  case  of  Moores  v.  Bricklayers,  memboi  of  a 
union  had  given  notice  that  they  would  work  no  material  pur- 
chased from  a  material  man  who  had  disregarded  a  boycott 
'j  order  issued  by  the  union.*  In  the  Branson  case  a  union  at- 

I  tempted  to  procure  the  discharge  of  members  of  another  union 

onleMtlMgr  would  join  the  defendant  unkQ.  In  the  case  of  the 
TliMker  OmI  OwiiNmy,  niembera  of  the  union  we^ 

liable  in  damages  for  proeuring  worbnen  under  oontnet  to  leave 

i|  employment,  m  an  effort  to  unionize  the  mine. 

1  A  leading  case  involving  the  right  of  an  employee  to  damages 

,  where  union  activities  prevent  his  employment  is  one  in  which 

an  agreement  between  a  union  and  an  association  of  employers 
I»ovided  that  the  latter  would  employ  no  one  not  a  member  of 
the  union  for  a  longer  period  than  four  weeks,  within  which  time 
he  should  become  a  monber  oi  the  union  or  be  discharged.* 
I  The  plaintiff  dedined  to  beoisne  a  monber,  and  m^i  diacharged 

i  acoMdingly.  In  the  suit  againrt  the  uni<m  the  only  d^ense 

offered  was  the  contract.   The  court  held  that  the  principle  of 
^  this  contract  was  "glaringly  at  variance  with  that  freedom  in 

I  the  pursuit  of  happiness  which  is  believed  to  be  guaranteed  to  all 

,  by  the  provisions  of  the  fundamental  law  of  the  state,"  and  that 

^  the  effectuation  of  the  purpose  expressed  in  it "  would  conflict  with 

<  See  alao  Employug  Printers'  Qub  t.  Doctor  Bloaer  Ca,  122  Oa.  609, 60  S.E. 
868. 

*  See  alao  I^lrin«ton  •.  Hincheliff,  219  n.  UWb  7e  NJL  47:  Plink  t.  Ctepw- 
ton.  eto,  ,  214  P».  St.  348.  63  Atl.  685. 

I 

I 


LABOR  DI8FUT18 


803 


thtti  piiaciplt  of  pabKe  poBoy  which  prohibits  monopoliee  uid 
exeluiive  privileges."  The  plaintiff,  Galen,  wm  therefore  de- 
ohmd  to  be  within  his  rights  in  suing  for  damages  resulting  from 
the  procurement  of  his  discharge.  The  fact  that  the  contract 
was  such  as  to  bar  nonunion  men  from  all  employment  locally 
was  held  to  put  this  case  on  a  different  footing  from  one  in  which 
the  contract  was  between  »  union  and  but  a  idn^  employer.* 
It  WM  mUL  in  the  Jaodbt  case  that  the  doetrine  of  the  Curran 
ease  had  not  been  ovorruled  by  the  opinion  in  a  case  in  which 
was  uphdd  the  right  of  an  organisation  to  threaten  strikes  so  as 
to  procure  the  discharge  of  workmen  in  order  to  secure  the  em- 
ployment of  members  in  their  stead.»  The  dissenting  opinion 
in  the  Gumming  case,  however,  was  to  the  effect  that  the  doctrine 
of  Curran  v.  Galen  required  a  contrary  finding  in  the  case  in 
hand.  In  Massachusetts  it  is  consistently  held  that  an  employee 
is  entitled  to  damages  where  his  discharge  results  from  a  oom- 
bination  of  penons  to  obtain  it  beeause  he  refuses  to  become  a 
member  of  the  union  or  act  otherwise  for  their  advantage  in  a 
matter  fai  which  he  has  the  right  to  act  independently.* 

Not  only  actual  but  punitive  damages  may  b»e  awarded  a 
workman  whose  employment  has  been  maliciously,  i.e.,  inten- 
tionally and  unjustifiably,  interfered  with;  and  where  such 
interference  is  the  action  of  an  acknowledged  representative  of 
a  union,  and  is  directed  or  approved  by  the  latter,  both  he  and 
it  are  Hable  as  joint  tort  feasors.*  Where  loss  of  employment 

>  JamlM  t.  Ck>hen.  183  N.Y.  207. 76  N.E.  S. 

•N«ti«Ml  Prat  Am^  of  BtMUBfittm,  ate-.  OmaSa§,  170  N.Y.  815.68 
N.E.36B. 

•  Bcfiy  ».  DoBOTU,  188  Maat.  369,  74  N.E.  603 ;  citing  many  cmm.  A  judg- 
MBt  DoBOVMl.  •  iiipfMontttiTn  of  the  union,  in  the  mm  of  S1500  wM 

■fflfiiil  4Wy«BUUi*.I>eady,79CoBB.414,65Atl.  129. 


304        LAW  OF  THE  EMPLOYMENT  OF  LABOR 


follows  unlawful  expulsion  from  a  union,  damages  tan  lecover- 
able,  as  well  as  an  order  for  reinstatement.^  Damages  may 
include  not  only  the  actual  wages  lo<,  Lyt  may  also  cover  the 
loss  of  rank,  damages  to  reputati  >u,  and  the  ha  .dering  of  the 
complainant's  prospects  of  advar  ejitnt.* 

The  judgment  for  damages  may  11;'  ;',;R!ri?t  the  persons  active 
in  carrying  out  the  puipoees  of  the  union,'  or  against  the  union 
as  such,*  or  against  individual  manbers  and  the  union.*  Where 
a  judgment  against  a  union  is  unsatisfied,  the  amount  may  be 
recovered  against  the  individual  members;*  and,  in  general, 
all  the  parties  to  a  wrongful  agreement  are  liable  for  illegal  acts 
done  in  the  carrying  out  of  the  agreement.'  The  fact  of  crimi- 
nal liability  does  not  affect  the  right  of  injured  persons  to  bring 
civil  actions  for  the  recovery  of  damages.'  In  a  number  of 
cases  where  unmcorporated  unions  were  held  liable  in  damages, 
it  was  by  virtue  of  a  statute  fixing  thdr  status,  the  ctnnmon  law 
rule  generally  observed  bong  to  the  effect  that  such  bodies  can- 
not, as  such,  dthn  me  or  be  sued. 

>  Sehneidw  t.  JounMymeii  Flumbm,  ete.,  116  La.  370, 40.  So.  700 ;  Brauuui 
V.  Hatters,  73  N.J.L.  720, 85  AtL  165;  Bluehard  f.  Cupwton  A  Joinan,  77 
N.J.L.  389.  71  Atl.  1131. 

*  De  Minim  f .  Cnis.  307  Maa.  508. 04  N.E.  S17. 

•GatBow  •.  Buenins,  106  Wis.  1,  81  N.W.  1003;  Cumn  t.  Qalen,  tupn; 
O'Neil  V.  Behanna,  tupra;  Carew  •.  Rutherford,  rupra. 

*  F.  R.  Patch  Mfg.  Co.  v.  Int.  Aaa'n.  of  Machiniata,  tmp.-u;  Branaon  v.  Indur 
trial  Workers  of  the  World,  supra;  Brennan  t.  Hatters,  supra;  Schneider  «. 
Jounieymen  Plumbers,  supra;  Jonea  t.  Maher,  116  K.Y.  Supp.  180, 62  Misc. 
Rep.  388.  >  Wyeman  «.  Deadjr,  supra. 

*  F.  R.  Patch  Mfg.  Co.  s.  Capdea.  70  Vt.  1,  63  AU.  038. 

*PiirinctCHi  s.  ffin^difl.  supra,  and  OMsa  dtad;  Toiado,  ate.,  R.  Co.  t. 
Penna.  Co.,  64  Fed.  7S0;  F.  B.  PMeh  MCg.  Co.  t.  Intamatiaaal  Am'b.  of  Ma- 
chinists, supra. 

•UBdorUU  «.  Ifmphy.  U7  Xjr.  940.78  &W.  483;  Plirvfa  «.  CamaBtera  * 
Joiaan,  mipmi  Wyamaa  t.  Paady.  aivra. 


LABOR  DISPUTES 


305 


SscnoN  126.  Injunctions.  —  A  remedy  in  more  common  use 
than  the  suit  for  damages  is  the  preventive  remedy  of  the  in- 
junction or  restraining  order  which  issues  from  a  court  of  equity 
for  the  purpose  of  preventing  injiuy  or  of  preserving  the  status 
quo  until  final  determination  of  rights  can  be  had.  Though 
coming  more  widely  into  public  notice  in  recent  years  on  account 
of  itB  use  in  important  labor  disputes,  the  writ  of  injunction  is 
of  ancient  origin,  its  counterpart  existing  in*  the  decretal  of  the 
Roman  law.^  While  injunctions  are  most  commonly  restrictive 
or  prohibitory  in  their  operation,  the  mandatory  injunction, 
ordering  the  performance  of  a  specified  act,  is  not  unknown,  at 
least  to  the  extent  of  requiring  the  rendering  of  the  service  or 
the  performance  of  the  work  or  duty  which  is  incumbent  on  the 
enjoined  party  in  the  premises.*  The  writ  is  most  frequently 
invoked,  however,  so  far  as  concerns  the  present  study,  to  re> 
strain  the  cmmnission  of  injurious  and  unlawful  acts  in  the 
furtherance  of  labor  disputes,  as  picketing,  boycotting,  the 
distribution  of  unfair  lists,  and  other  forms  of  activity  which 
are  classed  as  coercive,  intimidating,  or  as  unjustifiably  inter- 
fering with  employment  or  business. 

The  injunction  is  classed  as  an  extraordinary  remedy,  and  is 

1  Boavto,  Law  Diet. 

*  Toledo,  ete.,  R.  Co.  t.  Puunylvuil*  Co.,  64  Fed.  730;  Lennon  t.  Lake 
Shore,  etc.,  R.  Co.,  22  U.S.  App.  561 ;  In  re  Lennon,  168  U.S.  648,  17  Sup.  Ct.  658. 
In  thia  oaae  the  Pennalyvania  Co.  had  sought  to  avoid  difficulty  with  ita  work- 
men by  refudnc  to  handle  can  or  frei^t  from  the  complainant  road,  againit 
which  a  strike  was  in  progress.  The  court  enjoined  the  Pennsylvania  company 
and  its  officers  and  employees  from  refusing  to  afford  the  complainant  road  equal 
facilities  to  those  furnished  other  companies.  This  left  all  defendants  free  to 
eeaae  all  railway  service  or  employment,  but  obligated  them,  if  they  furnished 
any,  to  furnish  it  to  all  alike.  It  waa  Lenamt'a  raf^  to  do  tiiis.  while  atiU 
remaining  in  eervioe  as  a  looomotive  engineer,  that  brought  him  under  the  Judg- 
ment of  tiie  oourta. 


306  OF  THE  EMFLOTMBNT  OF  LABOB 


to  be  resorted  to  only  when  '  he  remedy  at  law  is  inadequate, 
"depending  on  whether  the  injury  done  or  threatened  is  of  such 
a  natiire  that,  when  accomplished,  the  property  cannot  be 
restored  to  its  original  condition,  or  <!annot  be  replaced  by 
means  at  etnapenaation  in  money;  or  whether  full  compensa- 
tion  for  the  entire  wrong  can  be  obtained  without  resort  to  a 
number  of  suits."  ^  While  no  final  decree  will  be  made  without 
a  hearing  of  both  parties,  a  preliminary  or  interlocutory  decree 
may  be  issued  at  the  instance  of  one  party,  who  must  show  not 
merely  possible  or  probable  danger  of  interference  with  his 
rights  or  property,  but  that  the  injury  is  either  already  occa- 
sioned and  will  continue  unless  enjoined,  or  that  it  is  so  immi- 
nent as  to  warrant  the  intwventiom  of  the  oourt.  Other  facts 
to  be  shown  are  the  irreqwnsibility,  tnm  a  financial  standpdnt, 
d  tlw  parties  against  i^om  tiie  injunction  is  sou|^t;  their 
numbers,  making  suits  at  law  numerous  and  hmdt  ^ome ;  and 
the  preponderance  of  the  threatened  loss  of  the  complainant 
over  the  inconvenience  of  the  i>:spondents  which  would  follow 
the  issue  of  the  writ ;  though  not  all  of  these  would  be  required 
in  a  single  instance.* 

Injunctions  are  granted  only  by  courts  of  equity,  and  only  in 
cases  ci  equitable  cognisance  according  to  the  established  i»in- 
dpks  d  equity  jurisdiction,  ffinoe  the  purpose  <rf  the  injunc- 
tion u  ehwfly  to  maintain  jmsent  coaditimks,  and  it  k  without 
power  to  prociu%  the  restoration  of  conditions  already  changed, 
it  is  said  that  an  injunctioa  will  not  israe  relating  eaolusively 


>  Bwr  t.  Eton  TndM  Cou.  j,  6S  NJ.  Eq.  101. 80  AtL  881. 

•  Mr  MuryUaA  Lodt*  t.  Adt,  100  M d.  SS8. 8S  Ati.  7X1 ;  ahwiy  w.  FhUm,  U.7 

Mass.  212, 17  N.E.  307 ;  Coeur  d' Alone  Co. «.  Miners'  Union,  SI  Fed.  260 ;  Inrt 
Debt.  168  U.S.  504.  IS  Sup.  Ct.  900 ;  Dudley  f .  Hunt,  07  Md.  44. 8  Atl.  901. 


LABOR  DISPUTES 


307 


to  acts  already  committed.'  It  may  be  issued,  however,  even 
after  the  termination  of  a  strike,  on  the  ground  that  the  right 
to  relief  is  to  be  determined  by  the  status  existing  at  the  time  of 
the  filing  of  the  bill.*  An  injunction  will  not  issue  to  restrain 
the  commission  of  criminal  acts,  merely  as  such,  but  where  such 
acts  involve  injuries  to  property  or  property  rights  for  which 
the  law  does  not  afford  redress  within  the  principles  laid  down 
above,  equity  will  intervene  by  means  of  the  kgunction,  even 
though  the  prohibited  acts  would  be  punishable  by  the  state  as 
criminal.*  Where  there  is  no  adequate  proof  of  intimidaticm 
or  impending  danger,  no  writ  will  be  granted ;  *  actual  violence 
is  not  necessary,  however,  to  ground  a  successful  complaint, 
since  the  numbers  of  the  striking  employees,  their  positions, 
attitudes,  looks,  ridicule,  threats,  etc.,  may  produce  intimida- 
tion and  eoerdon  against  idiieh  an  injunction  will  be  allowed.' 
The  free  use  ci  streets,  free  access  to  wwks,  and  freedom  from 
insulting  at  otherwise  objectionable  treatment,  both  at  h<»ne 
and  in  public  places,  are  among  the  rights  of  every  citizen ;  and 
an  employer's  interest  in  such  rights  for  his  onployees  and  oub- 

>  Reynolds  t.  Everett,  144  N.Y.  189,  39  N.E.  72 ;  De  Minico  *.  Cnig,  207 
]iaM.893,94N.E.317;  aty  of  Ainu  w.  Loehr,  42  Kuu.  308. 22  Pm.  424. 

>  U.S. ».  Workinsmen'i  Amalgmated  Cottndl,  M  Fed.  944.  ("Rights  do  not 
ebb  and  flow.  If  they  en  invaded,  and  recoune  to  courts  of  Justice  is  rendered 
neeessary,  it  is  no  defense  to  the  invasion  of  a  right  that  since  the  institution  cS 
the  suit  the  invarion  has  ceased.  With  emphasis  would  this  be  true  where,  at 
hen,  Ite  lii^  to  invade  is  not  diselaimad.") 

'Sherry  t.  Perkins,  supra;  Coeur  d'Alene  Co.  «.  Miners'  Union,  mpra; 
United  SUtas  t.  Elliott.  02  Fed.  801 ;  Arthur  w.  Oakes,  63  Fed.  310. 11  CCA. 
209;  Plina  «.  Stafalsnsa's  UaioB,  IM  CaL  70, 108  Pte.  SM. 

« Everett-Waddy  Co.  t.  Riehrooad  Tfp.  U«k»,  lOB  Ytu  188,  58  8.B.  878; 
Rogers  •.  Evart,  17  N.Y.  Supp.  204. 

•  Barr  t.  B«m  Itadas  Omadi.  siipw;  JMdM  ».  Bwdi.  1  Od.  Ap9.  OOe.  88 
PM.1070. 


2I0S        LAW  OF  THE  EMPLOYMENT  OF  LABOR 

tomen,  actual  or  potential,  is  sufficient  to  support  a  complaint 
from  him  and  to  secure  an  injunction  on  a  proper  showing  of 
facts.*  In  general,  it  may  be  said  that  what  acts  will  warrant 
th3  intervention  of  a  court  of  equity  will  be  determined  by 
the  circumstances  in  each  case  rather  than  by  any  general  rule, 
and  in  deciding  the  matter  the  courts  will  consider  the  spirit 
and  intent,  and  not  merely  the  form  and  letter,  of  the  act  or 
word.' 

An  injunction  may  issue  on  the  initiative  of  the  state,  to  abate 
a  public  nuisance,  such  as  the  obstruction  of  a  highway  or  in- 
terference with  the  transportation  of  the  mails ;  •  and  the  fact 
that  the  act  enjoined  would  be  an  offense  punishable  criminally 
does  not  interfere  with  the  issue  of  the  writ.*  In  ihe  Debs  case, 
involving  obstruction  of  the  mails  and  of  interstate  traffic,  it 
was  said  by  the  Supreme  Court:  "It  must  be  borne  in  mind 
that  this  bill  was  not  amply  to  jnjoin  a  mob  and  mob  violmce. 
It  was  not  a  bill  to  command  a  keeping  of  the  peace ;  much  less 
was  its  purport  to  restrain  the  defendants  from  abandoning 
whatever  employment  they  were  engaged  in.  The  right  of  any 
laborer,  or  any  number  of  laborers,  to  quit  work  has  not  been 
challenged.  The  scope  and  purpose  of  the  bill  was  only  to  re- 
strain forcible  obstructions  of  the  highways  along  which  inter- 
state commerce  travels  and  the  mails  are  carried." 

In  line  with  the  above,  it  is  true  that  no  injunction  will  issue 
to  r«rtrun  a  libel  or  slander,  merely  as  such ;  and  this  fact  has 

i  American  Steel  ft  Wire  Co.  •.  Wire  Drawen'  Union,  90  Fed.  608 ;  In  re 
Debd,  «Mpra;  Jmey  aty  Ihintiac  Ck>.  t.  CMridjr,  83  N  J.  Eq.  7S9, 68  Att.  230. 

'  Coeur  d'Alene  Co.  r.  Miners'  Union,  supra. 

>  Att'y  General «.  Ice  Co.,  104  Maw.  230 ;  State  t.  Goodnight,  70  TexM  882, 
11  8.W.  119 ;  U.8.  ».  Debe,  64  Fed.  724  ;  In  re  Debs,  mtpra. 

*  In  n  DelM,  mpra;  Fort  of  Molnle  w.  R.  Co.,  84  Ala.  115, 4  So.  108. 


LABOR  DISPUTES 


300 


been  relied  upon  by  parties  publishing  unfair  lists,  boycott 
notices,  tad  the  like,  as  a  defense  against  the  issue  of  an  injunc- 
tion to  restrain  such  publications.   It  is  held  by  the  weight  <d 

authority,  however,  that  they  may  properly  be  enjoined,  not  as 
libels,  but  as  intimidating  and  coercive.*  "In  the  case  of  an 
unlawful  conspiracy,  the  agreement  to  r,ct  in  concert  when  the 
signal  is  published,  gives  the  words  '  .  ufair,'  'we  don't  patron- 
ize,' or  similar  expressions,  a  force  not  inhering  in  the  words 
themselves,  and  therefore  exceeding  any  possible  right  of  speech 
which  a  single  individual  might  have.  Under  such  drcum- 
stances  they  become  what  have  been  called  'verbal  acts,'  and 
as  much  subject  to  injimction  as  the  use  of  any  other  force 
whereby  property  is  unlawfully  damaged." '  It  has  been  held, 
however,  that  a  finding  containing  "no  allegations  that  the 
mere  notification  of  customers  that  plaintiffs  are  'unfair'  has 
any  special  significance,  that  it  portends  injury,  or  was  intended 
as  a  threat  or  intimidation,"  would  not  su  L  in  an  injunction 
forbidding  the  notification  of  customers  that  the  plaintiffs  were 
unf  ur ; '  though  it  seems  hardly  too  much  to  say  at  the  present 
time  that  the  word  has  acqiured  a  technical  signification  of 
which  the  courts  might  take  cognizance,  especially  where  the 
use  of  the  word  is  one  of  a  series  of  acts  of  which  the  others  are 
enjoinable.*  Where  an  injunction  has  been  granted  restraining 

'  CoBur  d'Alene  Co.  v.  Miners'  Union,  tupra;  Beck  ».  Railway  Teamsten' 
Prot.  Union,  118  Mich.  497,  77  N.W.  13;  Cuey  *.  Typographical  Union.  45 
Fed.  185. 

»  Gompera  v.  Buck's  Stove  A  Range  Co.,  221  U.S.  418,  31  Sup.  Ct.  492.  See 
p«r  contra,  Man  &  Haas  Jean  Clothing  Co.  •.  Watson,  168  Mo.  133,  67  S.W. 
Ml ;  UiMfaay  t.  Montwui  Fed.  of  Labor.  37  Mrat.  264. 90  Pm.  137. 

*  Gray  t.  Building  Trades  Council,  91  Minn.  171,  97  N.W.  663. 

*  Seattle  Brewing  Co.  v.  Hansen,  144  Fed.  1011 ;  Loewe  «.  Cal.  State  Fed.  of 
Labor,  180  Fwl.  71 ;  Hattig  Sadi  A  Door  Co.  t.  FueUe,  143  Fad.  383. 


810       LAW  OF  THB  SIfFLOTMINT  OF  LABOR 


interference  with  business,  newspaper  publications  inciting  to 
a  violation  of  t^  injunction  will  th«mnlve8beenj<»ned,  not  as 
depriving  the  periodical  in  question  "of  any  lawful  right  to 
publish  the  truth  or  express  its  opinion  in  a  lawful  manner; 
but  no  newspaper  has  the  right  to  publish  any  matter  intended 
to  aid  wrongdoers  in  accomplishing  a  wrongful  purpose  or  doing 
unlawful  things,  or  to  aid  unlawful  combinations  in  makmg 
effective  an  unlawful  conspiracy."* 

Questions  of  the  jurisdiction  of  state  and  federal  courts  are 
determined  by  the  same  tests  of  divernty  oi  dtisenship  of  the 
parties,  or  of  the  consideration  of  federal  questions,  as  in  other 
classes  of  cases.  Thus  where  in  an  injunction  proceeding 
brought  by  a  Ikfissouri  corporation,  involving  defendants  resi- 
dent in  Missouri  and  in  Kansas,  the  case  against  the  former 
was  dropped  in  proceedings  before  a  federal  court,  which  left 
the  case  properly  in  the  hands  of  that  court.*  Though  if  a 
federal  court  has  jurisdiction  of  an  origuud  case,  it  may  issue  an 
injunction  therem  without  regard  to  the  citiienship  of  the 
parties. 

A  bond  is  usually  required  before  a  prdiminaiy  injunction 
will  issue,  to  cov«r  any  loss  or  damage  that  may  accrue  to  the 

*  Tdephone  Co. «.  Kent,  IM  Vtd.  178. 

»  Hopkins  V.  Oxley  Stave  Co.,  83  Fed.  912, 28  CCA.  99.  The  lUtM  hm  not 
accepted  with  equal  readineaa  the  prineiples  of  equity  or  made  equally  free  use  of 
it  in  it!  appUeation  to  labor  queationa.  while  federal  courts  hare  been  governed 
by  a  law  declaring  their  full  equity  juriadietion.  and  have  doubtlaai  felt  a  mutual 
and  general  influence  more  readily  than  has  been  the  ease  with  the  state  courts. 
These  facts  may  in  part  account  for  a  somewhat  widespread  feeling  that  the  writ 
oi  injunction,  espeoiaUy  aa  uaed  in  labor  disputes,  is  peculiarly  an  instrument  of 
the  federal  ooorts.  It  seems,  however,  that,  ^Mwt  fe«n  eaasa  invohfint  federal 
receiverships,  injunctions  in  labor  disputes  were  first  used  by  state  courts ;  and 
it  is  said  thmt  the  rights  of  state  and  federal  courts  in  regard  to  issue  of  in- 
j jnuUuiu  aiB  "msoissiT  thn  sami "  Uoiaa  P.  B.  Co.  t.  Snsf,  190 IWL  lOt. 


I 


LABOR  DISPUTES  311 

defendant  if  it  shall  appear  at  the  final  hearing  that  the  order 
was  not  a  proper  one,  though  the  giving  of  such  bond  is  a  matter 
of  statutory  regulation.   The  injunction  becomes  effective  only 
on  the  filing  of  the  bond,  if  one  is  required,  but  is  then  binding 
on  the  parties  to  whom  it  is  directed  after  they  have  had  notice, 
without  the  necessity  of  a  formal  service  of  the  writ.  The  order 
is  also  binding  upon  all  othor  personB  whatsoever,  even  if  not 
named  therdn,  from  and  after  the  time  when  they  have  actual 
knowledge  <rf  its  existence.*  Questions  of  validity  are  deter- 
minable by  the  courts,  and  a  defendant  believing  his  rights  to 
be  infringed  upon  by  the  granting  of  an  injunction  has  recourse 
only  to  them.   Disobedience  is  at  his  peril  so  long  as  the  in- 
junction is  in  existence,  no  matter  how  erroneously  or  improvi- 
dently  it  was  granted,*  since  "if  a  party  can  make  hunself  a 
judge  of  the  validity  of  orders  which  have  been  issued,  and  by 
his  own  act  of  disobedience  set  them  aside,  then  are  the  courts 
impotent,  and  what  the  Ckmstitution  now  fittingly  caUs  the 
*  judicial  power  of  the  United  States '  would  be  a  mere  mockery.'" 
"If  an  injunction  is  for  any  reason  totally  invalid,  no  violation 
of  it  constitutes  a  punishable  contempt ;  but  if  the  court  ac- 
quired jurisdiction,  and  did  not  exceed  its  powers  in  the  partic- 
ular case,  no  irregularity  or  error  in  the  procedure  or  in  the 
order  itself  could  justify  disobedience  of  the  writ."  *    A  su- 

1  Ex  parte  LennoB,  64  Fed.  320 ;  United  Statei ».  Agler,  62  Fed.  824 ;  In  re 
Lennoo,  aupra. 

» A.  R.  Barnes  &  Co.  ».  Typographical  Union,  282  IB.  408. 88  NX  982 ;  Cmt 
».  Diatriot  Court,  147  Iowa  663. 126  N.W.  791. 

•  Gompen  ».  Bncto  Stow  *  Rmi«b  Co.,  221  U.8. 418. 31  Sup.  Ct.  492 ;  and  see 
Huttig  Saab  &  Door  Co.  t.  Fudle,  wpra;  Vflt«  Mfg.  Co.  •.  Humphrey,  132  WU. 

687,  112  N.W.  1095.   ,  „  ^ 

4UBit«18ti^t.Deha»«4FM.724:  Ai  yarte  WatUnm  8  PMen  193. 28  U.S. 

119. 


I 


312        LAW  OF  THE  EMPLOYMENT  OF  LABOR 

perior  court  cannot  interfere  to  prevent  an  inferior  court  frcm 
issuing  injunctions  where  the  latter  clearly  has  jurisdiction  over 
the  ma  ter  in  question.*  The  question  of  appeals  from  orders 
granting  injunctions  is  controlled  chiefly  by  statute,  and  it  is 
held  as  the  better  view  that  in  the  absence  of  legislative  provision 
no  appeal  will  lie  in  cases  involving  preliminary  injunctions;* 
and  even  where  the  appeal  is  aUowed,  the  superior  courts  are 
averse  to  any  free  exorcise  of  its  use,  requiring  a  definite  showing 
of  the  abuse  of  the  discretion  committed  to  courts  having  power 
to  issue  injunctions,  so  that  unless  it  is  shown  that  the  writ  was 
illegally  or  improvidently  granted,  it  will  not  be  disturbed;* 
and  where  a  writ  is  set  aside  for  these  reasons,  and  was  not 
technically  void  from  the  first,  prior  violations  of  it  are  punish- 
able, since  it  is  in  force  until  set  aside  by  proper  proceedings  in 
court.*  Appeals  mxy  be  taken  from  final  injunctions,  but  the 
appeal  does  not  suspend  the  opnation  of  the  restraining  order ; 
and  to  hold  the  contrary  would  obviously  make  it  possible  to 
thwart  the  entire  purpose  of  the  injunction  in  many  cases; 
the  court  issuing  the  injunction  may  punish  violators  of  it  for 
contempts  committed  during  the  pendency  of  the  appeal,'  as 
may  also  the  appellate  court,  since  n  disregard  of  the  injunction 
under  review  is  a  contempt  of  the  court  to  which  it  is  to  be  or 
has  been  submitted.'  The  same  rule  holds  where  a  temporary 

■  State  •.  Judge,  29  La.  Ann.  360. 

*  United  States  Heater  Co.  «.  Iron  Mdden'  Uaion,  129  Miefa.  8M,  88  N.W. 
889 ;  High,  Injunctiona,  4th  ed.,  sec.  1693. 

•  Bonaud  t.  Gened,  42  Ga.  639 ;  Woridagmaa's  AmilgKinatad  Council  t. 
United  States.  67  Fed.  86,  6  C.CJi.  268. 

« Worden  t.  Searis,  121  U.S.  14, 7  Sop.  Ct.  814. 

*  Worden  «.  Searis,  tupra;  Bucks  Stove  A  Range  Co.  «.  American  Fed.  of 
Labor,  36  Wash.  L.  R.  822 ;  Gompers  «.  Bucks  Stove  it  Range  Co.,  221  U.S.  418, 
31  Sup.  Ct.  492 ;  A.  B.  Barnes  A  Co.  t.  ^oago  Typographical  Union,  mtpra. 

•  S»viagi  BMik  t.  Otjr  of  Clay  Canter.  819  UJ9. 627,  SI  Aip.  Ct.  29S. 


LABOR  DISPUTES 


313 


injunction  has  been  continued  during  the  pendmcy  of  an 

appeal. 

Labor  organizations  may  be  made  parties  to  injunction  pro- 
ceedings, whether  incorporated  or  not/  and  the  writ  may  be 
directed  against  the  union,  its  officers  and  members,  and  other 
persons  named  in  the  bill,  if  any,  and  all  other  persons  associ- 
ated with  them  in  committing  the  acts  and  grievance  com- 
plained of.  It  is  therefore  imposnble  to  evade  the  force  of  the 
writ  by  bringing  in  third  parties  to  carry  out  the  plans  of  the 
enjoined  members  of  the  union,  since  the  action  of  such  parties 
would  amount  to  a  wrongful  and  unlawful  uniting  with  the 
restrained  persons  for  the  purpose  of  thwarting  the  effect  of  the 
writ ;  and  the  fact  of  knowledge  of  the  writ  is  the  only  essential 
to  charge  liability  under  it,  regardless  of  the  omission  of  sub- 
poenas or  fonnal  service  ci  notice.*  On  the  other  hand,  if  only 
certain  officials  or  a  limited  number  of  the  m^bors  are  guilty 
of  the  iU^^  acts  complained  of,  the  ord»ly  conduct  of  a  lawful 
strike  will  not  be  interfered  with  by  an  injunction  against  all 
the  members,  but  the  writ  will  nm  only  against  those  persons 
who  have  committed  the  objectionable  acts.'  This  seems  to 
differ  somewhat  from  the  views  held  by  courts  issuing  the  so- 
called  "blanket  injimctions,"  binding  upon  persons  named  "and 

>  Loewe  v.  Cal.  State  Fed.  of  Labor,  tupra;  Purvis  r.  Brotherhood,  214  F». 
St  348, 03  Atl.  686 ;  American  Steel  A  Wire  Co.  •.  Wire  Drawers'  Union,  ntpra; 
Iron  Mdctera'  Unimi  •.  AUia^nmlmen  Co..  166  Fed.  45. 01  CCA.  631. 

*  In  re  Bessette,  111  Fed.  417 ;  Bessette  t.  Conkey,  194  U.S.  324,  24  Sup.  Ct. 
665.  ("  Jurisdiction  [over  a  third  person]  exists  by  reason  of  the  conspiracy  to 
defeat  the  {wocess  of  the  court,  although  such  person  is  a  stranger  to  the  suit. 
Mid,  by  tsMon  of  his  eitiaenahip.  eould  not  have  beaa  mad*  a  defendant  therein 
^  a  case  before  a  federal  court].") 

^Karges  Furniture  Co.  ».  Woodworkers'  Union,  165  Ind.  421,  76  N.F.  877; 
Pope  Motor  Car  Co.  •.  Keegan,  160  Fed.  148 ;  Union  P.  R.  Co.  t.  Ruef .  supra. 


814       LAW  OF  THE  EMPLOYMENT  OF  LABOR 


vpon  all  other  persons  whatsoeyer  who  are  not  named  therein, 
from  and  after  the  time  when  they  shall  severally  have  knowl- 
edge of  such  order  and  the  existence  of  "aid  injunctions."  ^ 
Apart  from  the  liability  to  pay  costs,  which  attaches  to  one 
named  in  an  injunction,  the  actual  difference  is  sentimental  and 
theoretieal  rathor  than  practical,  however,  as  was  set  forth  in 
(me  ot  tiie  eases  in  which  the  iuuimb  oI  apptna^  inaooent 
defendants  were  stricken  fn»n  the  bill,  the  court  stating  that 
inclusion  was  not  necessary  to  hold  them  to  a  strict  compli- 
ance with  the  terms  of  the  injunction  after  knowledge  thereof ;  * 
and  when  defendants  do  not  claim  that  the  injunction  restrains 
them  from  doing  anjrthing  which  they  have  a  right  to  do,  or 
which  they  have  a  desire  to  do,  and  the  sole  objection  to  the 
injunction  is  that  it  is  unnecessary,  the  objection  being  ur^jed 
because  of  the  erroneous  notion  that  the  vacation  of  the  injunc- 
tion is  a  vindication  of  tiie  drfoidants,  comparatively  slight 
evidence  ol  the  usefulness  or  necessity  ci  the  injunction  b  auffi- 
dent  to  sustain  a  temporary  order  until  final  hearing.' 

It  has  already  been  pointed  out  that  labor  combinations  have 
been  made  the  subject  of  legislative  action  intended  to  declare 
their  status  as  lawful  and  not  subjecting  the  members  thereof 
to  indictment  a"  conspirators.  A  statute  of  New  Jersey  *  de- 
clares it  not  unlawful  for  persons  to  combine  to  persuade,  advise, 
or  encourage  by  peaceable  means  others  to  enter  into  a  combina- 
tion for  or  against  leaving  or  entering  emptoyment.  This  seons 
to  have  been  construed  as  Iqcaliimg  pnvate  injuries;*  and  was 

>  United  States  *.  Debo,  tupra. 

*  Pope  Motor  Car  Co.  t.  Katfaa,  mqmv;  nt  alao  In  r$  Laaaoa,  mqm;  Boyd 
I.  State.  19  Neb.  128. 20  N.W.  925. 

»  HaU  Lace  Co. «.  Javes,  76  N  J.  Eq.  92, 79  Atl.  439.     *Q.S.,  p.  2344,  mo.  23. 

*  Mayer  t .  JouimynMn  Btonectttten,  47  N  J.  Eq.  fil9, 20  AtL  492. 


LABOR  DlSPUm 


316 


held  to  permit  the  kbqytkm  ci  peaeeabie  imiiuwi  for  indudng  | 
worianen  to  quit  <ur  to  rrfoae  to  entor  enqdoymmt.*  In  a  later  < 
case,  however,  the  court  of  errors  and  appeals  of  the  state  held  j 
that,  so  construed,  the  law  conflicted  with  the  state  constitution  i 
in  its  provisions  as  to  the  right  of  enjoying  and  defending  life 
and  liberty,  and  of  acquiring,  protecting,  and  possessing  prop- 
erty, and  that  it  could  go  no  farther  than  to  render  combina-  t 
Omu  of  the  sort  not  indietaUe.*  An  injunetion  against  pro-  i 
euring  violations  d  0(mtaM^,wlMthar  fw  fixed  tomsw  at  will,  | 
was  sustained  in  this  case,  as  well  as  agafaourt  coercive  measures 
to  prevent  the  flow  of  labor  to  the  comidainant's  works.   And  | 
clearly  no  law  is  constitutional  which  removes  unjustifiable  acts 
of  interference  with  employment  or  occupation  from  the  general 
control  of  the  law.   A  statute  of  California '  undertook  specifi- 
cally to  exempt  from  control  by  injimction  acts  done  in  fur-  j 
therance  of  disputes  between  employers  and  employees.  This 
statute  was  pleaded  in  a  strike  case  involving  the  boycott  and  | 
|4cketing,  whereupcHi  the  court  held  that  it  oould  not  be  (K>n- 
stnied  as  undortaking  to  prohibit  a  court  from  ogdning  unlaw- 
ful acts,  and  if  it  could  be  so  construed,  it  was  to  that  extent  void  ' 
as  violative  of  the  plaintiff's  rights  of  liberty  and  protection.* 

It  is  clear  that  the  injunction  relates  to  injury  to  intangible 
rights  no  less  than  to  injury  to  physical  property.    "The  right  [ 
to  choose  one's  calling  is  an  essential  part  of  the  liberty  which 
it  is  the  object  of  the  government  to  protect;  and  a  calling  !; 

I 

>  Cumberiuid  Qiam  Mfg.  Ck>.  t .  GIms  Bottle  Blowen,  SB  N. J.  Eq.  49. 46  Atl.  ! 


*  0«oivi  Jonas  Glaaa  Co.  •.  GBMi  BottI*  Btowm.  77  N J.  Bq.  S19. 70  AtL  m 
•Acts  1903.  ch.  236. 

*  Goldberg  v.  SteUemea'a  Uofaa,  1«  Cd.  439, 86  Fm.  806;  Vkm  t.  &im, 
lMCaL70.108FM.tM. 


31d        LAW  OF  THE  SMPLOTMBNT  OF  LABOR 


iHm  ehoMnbiMM'i  property  and  rii^t."*  The  oeeiqiatioa  by 
meena  of  which  a  man  earns  a  livelihood  and  supports  those 
depmdent  upon  him  is  property  within  the  meaning  of  the  law, 

and  entitled  to  protection  as  such.'  Employers  and  workmen 
are  entitled  to  free  opportunity  of  mutual  access  and  the  free 
exercise  of  choice  in  the  matter  of  making  and  carrying  out  con- 
tracts of  employment,  and  injunctions  will  issue  to  protect  such 
rii^its.*  These  rif^ti  extend  no  leas  to  proapeotive  or  nme 
possible  empioyeeB  than  to  tiiose  already  in  s«rvioe,  and  to  eus- 
t(»ners  actual  or  possible  as  well.*  In  the  case,  Jersey  City 
Printing  Co.  v.  Cassidy,  a  doctrine  of  "probable  expectancies" 
was  proposed  as  an  underlying  piinciple,  the  court  suggesting 
that  it  would  probably  be  ultimately  concluded  "that  th«-  < 
ral  expectancy  of  employers  in  relation  to  the  labor  market,  u. 
the  natural  expectancy  of  merchants  in  respect  to  the  merchan- 
dise market,  must  be  recognised  to  the  same  artmt  by  courts 
oi  law  and  courts  of  equity,"  involving  freedom  in  the  labor 
market  to  employ  or  to  be  employed. 

While  injunctions  of  this  nature  usually  issue  at  the  instance 
of  the  employer,  workmen  or  groups  of  workmen  may  secure 
such  orders  against  other  workmen  or  organizations  who  are 
interfering  with  their  opportunities  for  employment.*  If  it 
appears  to  the  court,  however,  that  the  defendants  are  not 

>  Slaughter  Houm  Caaes.  16  WaU.  (83  U.S.)  36. 

*  Gray  t.  Buflding  Tradea  Couaeil,  tupra:  Baek  t.  Railway  Teamaten'  Plot. 

Union,  tupra. 

*  Jersey  City  v  iting  Co.  t.  Caiddy,  lupra;  Amniean  Steel  &  Wire  Co.  t. 
Wire  Drawen'  Uiiion,  tvprti;  Unicm  P.  R.  Co.  t.  Ruef,  tupra. 

*  Beck  «.  Railway  Teamsters'  Union,  tupro;  Ooldbsig  «.  BtablaBWi'a  UaioBt 
tupra;  Jersey  City  Printing  Co.  v.  Cassidy,  tupra. 

•Rant  V.  Woods,  176  Mass.  492,  S7  N.E.  1011;  Erdman  t.  Miteb^.  307 
Pa.  St.  79. 66  AU. 327;  Pickett t.  Walah,  192 Maaa. 672. 78 NJL 768. 


LABOR  DISPUTES 


317 


esoMdiiig  their  rights  in  their  efforts  to  secure  Uhar  for  their  | 
own  members  and  in  the  methods  adopted,  no  injunction  will 
issue.*   Nor  can  one  union  secure  an  injunction  against  another 
to  protect  itself  against  disintegration  by  the  acts  of  the  rival 
union,  since  it  has  no  property  in  its  members,  who,  if  aggrieved, 
must  seek  redress  as  individuals,  the  court  holding  that  the 
union  as  such  could  not  bring  an  action,  even  though  the  acts 
of  the  rival  union  were  ot  an  ille^  nature nor  has  a  union  j 
such  an  intowt  in  the  employment  of  its  members  as  pickets  ' 
in  a  strike  which  it  is  conducting  as  to  warrant  the  issue  of  an 
injunction  on  its  petition  to  prevent  interference  with  such  em- 
ployment, where  it  does  not  appear  either  that  the  complainants 
are  suffering  substantial  pecuniary  damage,  or  that  the  defend- 
ants are  not  financially  responsible  for  any  damages  that  may  | 
result.* 

On  a  suit  for  injunction  a  court  may  retain  juriscUction  of  the 
case  in  order  to  give  such  full  relid  as  will  finally  dispose  of  the  | 

controversy  and  avoid  multiplicity  of  suits.^    Thus  in  consid-  \ 
ering  the  propriety  of  issuing  the  injunction,  it  may  also  con- 
sider what  damage,  if  any,  the  complainant  has  suffered  by  i 
reason  of  the  acts  complained  of,  and  award  such  amount  as 
seems  just;'  and  this  is  of  course  equally  true  whether  the 
complainant  is  an  employee*  or  an  employer.^ 

■  I 

>  Nktional  Protective  Aai'n.  t.  Cumming,  17  N.Y.  31fi,  02  N.E.  369. 

*  Sflver  Bute  Council  v.  Rhodee.  7  Colo.  App.  21 1 , 43  Pae.  451.  i  | 

•  Atkins  V.  Fletcher  Co..  65  N.J.  Eq.  658,  55  Atl.  1074.  ! 

*  Braman  «.  Fom,  204  Maae.  404,  90  N.E.  563 .  Gormley  •.  Clark,  134  U.S. 
338, 10  Sup.  Ct.  554 ;  Bim>l»in'a  Equity.  6th  ed..  mc.  37. 

•  Baldwin  w.  Aiwdatiwi.  163 Mich. 708, 180N.W.214;  Piirrk».Bioth«]ioo4.  'l. 


lupra. 

'  D?  Minico  *.  Craig.  207  Mass.  693,  94  N.E.  317. 
'  Fobom    Lewia  (MaM.).  94  N.E.  316. 


318        LAW  OF  THE  EMPLOTMBNT  OF  LABOR 


There  is  little  dispute  as  to  the  propriety  of  the  issue  of  the 
injunction  in  circuntistances  involving  the  conditions  set  forth 
above ;  but  there  is  wide  difference  of  opinion  as  to  when  the 
point  has  been  reached  at  which  intervention  is  proper.  This 
difficulty  is  pointed  out  in  the  mftttar  of  the  boycott  in  a  noted 
ease  in  the  following  language :  "Courts  differ  as  to  what  con- 
stitutes ft  boycott  that  may  be  enjouied.  All  hold  that  there 
must  be  »  conspiracy  caurang  irreparable  damage  to  the  busi- 
ness of  property  of  the  complainant.  Some  hold  that  a  boycott 
against  the  complainant  by  a  combination  of  persons  not  im- 
mediately connected  with  him  in  business  can  be  restrained. 
Others  hold  that  the  secondary  boycott  can  be  enjoined,  where 
the  conspiracy  extends  not  only  to  injuring  the  complainant, 
but  secondarily  ooooes  w  attempts  to  coorce  his  eoBUmen  to 
refrun  frcHn  dealing  with  him  by  threats  that  unless  they  do  so 
tiiey  thonselves  will  be  boycotted.  Othors  hold  that  no  boy- 
cott can  be  enjoined  unless  there  are  acts  of  phjrsical  violence,  or 
intimidation  caused  by  threats  of  violence."  ^  It  is  settled  by 
a  strong  line  of  cases  that  the  contention  that  what  one  may 
lawfully  do  alone  many  may  do  in  concert  is  not  tenable,  so  that 
an  injunction  will  lie  to  prevent  certain  forms  of  combined 
action,  thoue^  one  alone  doing  the  same  thing  would  not  be 
intwfered  with.*  Yet  an  injunction  against  workmoi  so  quit- 
ting service,  whethor  with  or  without  notice,  as  to  cripple  tiie 
busliMss  or  hinder  its  o(mtinuaiioe,'  was  on  vppnl  modified  so 

>  Oompm  V.  Bucks  Store  A  Ranie  Co.,  221  U.S.  418,  81  Sop.  Ct.  492. 

*  U.S.  «.  Kane,  23  Fed.  748 ;  Grenada  Lumber  Co.  «.  Miariiisippi,  217  U.S. 
433,  30  Sup.  Ct.  636 ;  AUu-Chalmen  Co.  Tron  Moiders'  Union,  160  Fed.  155 ; 
Jenagr  Chy  Matiac  Co.  t.  Casridy,  tupn;  hohm  Fatrat  Door  Co.  t.  TatUe, 
215  Mo.  21,  114  S.W.  997. 

*  Fanners'  L.  *  T.  Co.  t.  Northern  F.  R.  Co..  eo  Fed.  803. 


LABOR  DISPUTES 


319 


as  to  omit  the  words  restraining  departure  from  service,  though 
sustaining  prohibitions  of  combinations  and  conspu^ies  having 
the  object  and  intent  of  physically  injuring  the  property  or  of 
actually  interfering  with  its  regular  and  continuous  use.^  The 
line  drawn  in  some  states  by  statutes  forbidding  the  abandon- 
ment of  rolling  stock  of  raikoads  at  other  than  division  points  or 
terminals  affords  a  standard  where  aiq[>licable. 

It  is  equally  difficult  to  harmonise  the  rulings  of  the  courts 
in  r^ard  to  persuaaon.  "Persuasion,  too  emphatic,  or  too 
long  and  poristently  continued,  may  itself  become  a  nuisance, 
and  its  use  a  form  of  tmlawful  coercion," »  when,  of  course,  it 
would  be  enjoined;  and  it  has  been  very  recently  held  that  an 
injunction  against  inducing  or  persuading  an  employee  under 
contract  to  render  service  to  break  such  contract,  and  against 
"addressing  persons  willing  to  be  employed,  against  thdr  will, 
and  therdby  causing  thorn  pmonal  annoyance,  witii  a  view  to 
posoade  them  to  rrfrain  fn»n  such  employment"  was  {ffoperiy 
tamed ; '  and  in  anotitor  case  in  the  same  court  it  was  hdd  in 
effect  that  the  rij^t  to  persuade  existed  only  as  to  persons  willing 
to  listen  to  the  arguments  offered,  since  only  thus  can  the  free 
flow  of  labor  and  the  exercise  of  freedom  of  choice,  unrestrained 
by  annoyance  or  coercion,  be  maintained.*  This  consideration 
prevailed  to  sustain  the  granting  of  an  injunction  against  a  labw 
organisation  to  {wevent  it  frmn  fining  mr  tiureatening  to  fine  its 
membm  unless  tiiey  should  withdraw  their  service  from  an 

>  Artbor*.  OakH,  6S  Fed.  310, 11  CCA.  200. 

*  Otis  Steel  Co.  •.  Iron  Mdden'  Unioa,  110  Fed.  008. 

•  Qeorge  JonM  Glaaa  Co.  •.  Qlaas  Bottle  Blowete,  73  N.J.  Eq.  65S,  66  Atl. 
053 ;  afBrmed.  77  N.J.  Eq.  210,  70  AU.  262. 

« Fkuk  fl.  Herald,  63  N  J.  Eq.  443. 52  Ati.  152 ;  lee  elao  Jersey  City  PrinUng 
Co.  fl.  CHridy,  ntrra;  Qoldflald  CooaoL  Vin.  Co.  t.  Mlam'  Unioa,  150  Fed. 
nO;  IMea  P.  B.  Ob.  «.  Bmf,  M«ra. 


320        liAW  OP  THE  EMPLOYMENT  OP  LABOR 


employer  agednst  whom  a  strike  had  been  declared,  the  court 
holding  that  any  other  conclusion  would  be  inconsistent  with 
the  existence  of  a  reasonably  free  labor  market,  to  which  both 
the  employer  and  the  employee  are  entitled.^ 

While  it  is  well  settled  that  a  strike,  viewed  as  a  concerted 
cessation  of  workmen  from  labor,  oauiot  be  ogoined,  the  in- 
citement ci  strikes  may  be  a  propat  subject  of  restiwnt,  as 
where  th«re  is  a  oonqriraoy  involving  intraference  with  inter- 
state commerce;'  and  it  was  held  in  the  case  cited  that  a 
mandatory  injunction  might  issue  against  the  head  of  such  con- 
spiracy, compelling  him  to  rescind  an  offending  order;  and 
incitement  n-a;,  be  enjoined  if  the  strike  would  involve  the  breach 
of  contracts  of  employment ; '  or  has  for  its  object  a  monopo- 
listic purpose,  as  by  preventing  the  employment  of  any  but 
m^bers  of  a  labor  organisation.*  This  last  is  a  much-diq>uted 
point,  however,*  and  the  question  is  often  decided  according 
to  the  adjudged  motives  of  the  strikws.*  Where  the  strike 
partakes  of  the  nature  of  a  boycott,  it  is  generally  held  that  acts 
tending  to  incite  it  may  be  enjoined.'  Clearly  third  persons, 
unrelated  to  the  parties  affected  by  either  employment  contracts 

>  L.  D.  Willcut  <fr  Sons  Co.  t.  Bricklayers,  200  Maaa.  110,  85  N.E.  887;  and 
Me  Connett  v.  Haulers,  76  N.J.  Eq.  202,  74  Atl.  188. 

*  Tol«do.  etc.,  R.  Co.  t.  FenuylvBiiia  Co..  M  Fed.  790. 

•A.  R.BuaMftCo.«.BeRy,  18eFWL72;  WabaA  B.  Co.  t.  HMnahan.  181 

Fed.  563. 

*  Erdman  r.  Mitchell,  supra;  State  e.  DonaldaoD,  32  N.J.L.  151, 90  Am.  Dee. 
640;  Plant  v.  Wooda.  tupra;  Reynolds  t.  Davis.  198  Uim.  294. 84  N.E.  467; 
A.  R.  Barnes  ft  Co.  v.  Berry,  156  Fed.  72. 

'  Gray  v.  Building  Trades  Council,  lupra. 

*  National  Protective  Aas'n. «.  Gumming,  tupn;  State  v.  Stoekford,  77  Conn. 
327.58  Atl.  769;  Pickett  t.  Walsh,  rapro. 

'  Purvis  V.  Brotherhood,  tupra ;  Schlang  e.  Ladies'  Waiat  Makefs'  Uaioa,  134 
N.Y.  Supp.  289 :  Booth  «.  Burgeaa.  72  N.J.  Eq.  181. 66  AU.  226. 


LABOR  DISPUTES 


321 


or  by  organization,  will  be  enjoined  from  interfering  with  con- 
tracts of  employment.^  It  has  been  pointed  out  that  the  defi- 
nitions of  the  boycott  vary,'  but  according  to  what  appears  to 
be  the  more  commonly  accepted  use  of  the  word,  it  involves  acts 
of  injurious  c(Hnbination,  not  justifiable  as  trade  competition, 
•ad  subject  to  injunction.'  Where  the  boycott  constitutes 
•a  intwfwence  with  Interstate  caauaetee,  it  may  be  enjoined 
on  account  of  such  fact ;  *  so  also  if  it  amounts  to  a  violation  of 
the  federal  antitrust  law,*  or  obstructs  the  mails.' 

The  subject  of  picketing  requires  but  brief  notice  here.^  The 
matter  of  issuing  injunctions  to  restrain  this  form  of  activity 
will  be  controlled  by  the  views  entertained  by  the  court  as  to  its 
lawfulnesB  genmiUy  and  the  conditions  affecting  the  particular 
case.  Where  it  is  regarded  as  an  unlawful  interference  with 
business  or  onployment,  it  will  be  euj<Hned,  and  has  been  itself 
called  an  attempt  to  enforce  an  unauthorised  injunction  by  the 
organization  engaging  therein.*  In  a  few  cases  all  picketing 
has  been  regarded  as  unlawful  and  subject  to  injunction;'  but 
the  weight  of  opinion  refuses  to  interfere  with  peaceful  picketing, 

>  United  States  ».  Haggerty,  110  Fed.  610;  HitchzoAn  Coal  Co.  t.  MitoheU. 
173  Fed.  908;  Gonnett  •.  Hattoa,  •upra. 

*  This  aaetkm  abom;  and  aee  Piarae  i.  Steblemen'i  Uokm,  156  Cal.  70, 103 
Pm.  324. 

*  Sea  aee.  122 ;  and  aee  Lohae  Patent  Door  Co.  t.  Fiielle,  tupra;  Shina  t.  Vox 
Bkm.  Mfg.  Co.,  156  Fed.  357,  86  CCA.  311 ;  Purvis  v.  Brotherhood,  supra. 

*  Toledo,  etc.,  R.  Co.  v.  Pennsylvania  Co..  tupra;  In  re  Debs,  mpra. 

*  Loewe  «.  Lawlor,  208  U.S.  274, 28  Sup.  Ct.  801 ;  Unitad  Statea  •.  Wotkfaig- 
SMa'a  Amal.  CouncU,  54  Fad.  004. 

*  /n  re  Deba,  tupra. 
^  See  sec.  121. 

•Otia  Steel  Co.  «.  Iron  Moldeia'  Union.  110  Fed.  698;  and  aee  Sheny  t. 
ParUoa,  fiipra;  Union  P.  R.  Co.  v.  Ruef.  supra. 

*  Atchison,  etc.,  R.  Co.  v.  Om.  139  Fed.  SSS;  A.  B.  BafBta  *  Go.  «.  Typo- 
graphical Union,  232  lU.  424,  83  N.E.  940. 

T 


322        LAW  OF  THE  EMPLOTMSNT  OF  LABOB 


which  does  not  intimidate  from  force  of  numbers  or  other  cMue, 
and  is  merely  to  gain  information  or  to  e£fect  peaceful  persua- 
sion.* It  was  sud  in  a  recent  case,  however,  that  picketing, 
"in  its  mildest  form,  is  a  nuisance;  and  to  compel  a  manu- 
facturer to  have  the  natural  flow  of  labor  to  his  onployment 
afted  by  a  8df-«(H»tituted,  antagonistic  (XHnmittee,  whose  very 
{nresenoe  upon  tiie  hi^wiqr  f<v  saoh  purpose  is  deterrent,  is  just 
as  destructive  of  his  pmpttty  as  is  a  boyoott  which  prevents  the 
sale  of  his  product."*  In  this  case  a  boycott  had  bea&  pre- 
viously declared  unlawful,  and  an  ii^  unction  had  been  granted 
against  threats,  intimidation,  or  coercion  with  a  view  to  pre- 
venting workmen  from  accepting  employment  with  the  plaintiff 
company.  In  the  present  instance  an  injunction  was  allowed 
restruning  the  defendant  association  and  its  officers  from  per- 
suading or  indudng  penmis  or  owporations  not  to  deal  with 
the  oonq^uiy  because  it  onidoyed  nonunkm  worianoA.  This 
is  farther  tiian  injunctions  usually  go,  but  tlie  court  regarded  the 
union  as  acting  with  no  motive  tm  interfering  with  the  complain- 
ant beyond  the  avowed  purpose  of  destroying  it.  "  The  result 
which  they  seek  to  obtain  cannot  come  directly  from  anything 
they  do  within  the  regular  line  of  their  business  as  workers  com- 
peting in  the  labor  market.  It  can  only  come  from  action  out- 
ride of  the  province  of  workingmen,  intended  directly  to  iigure 
another."' 

*  Kmsm  Fufultuts  Co.  ff.  Woodmfkfln'  Unkw.  ntprti;  8t  Look  t.  Oloiwr, 
210  Mo.  602,  109  S.W.  30 ;  Cumberiand  OUm  Co.  «.  Glaas  Bottle  Blowers, 
aupra;  Pope  Motor  Car  Co.  t.  Keegan,  aupra;  Iron  Molden'  Union  t.  Allis- 
Chdnen  Co..  166  «wL  45. 91  CCJi.  6S1. 

•  George  Jonas  Glass  Co.  v.  Glass  Bottle  Bhnran,  72  NJ.  Eq.  «68.66  Ati.  063 ; 
afllnned.  77  N.J.  Eq.  219,  79  AU.  262. 

'  Berry  v.  Donovan,  188  Maaa.  353,  74  N.E.  803 ;  utd  Me  Hepktnt  t.  Oadey 
8UT«Co..88Fed.9ia,28C.CJL9B;  SUim  ».  Fm  Bioe.,  M^ra. 


LABOR  DISPUTES 


323 


The  fact  that  offensive  boycottmg  or  picketing  foUowed  a 
strike  that  was  in  itself  legal  in  no  wise  affeett  the  iaBue  of  aa 
injunction  restruning  the  offending  acts.^ 

Section  127.  Contempts.  —  The  willful  violation  or  disregard 
of  an  injunctive  order  is  a  contempt  of  the  court  issuing  it,  and 
is  liable  to  puni&hment  aa  such.  The  power  to  enforce  the  pen- 
alty is  inherent  in  all  courts,  and  is  essential  to  the  eDforcement 
of  thdrcMrdors  and  the  due  administration  of  justice.*  Without 
it  they  would  be  "mere  boards  of  arbitration  whose  judgments 
and  decrees  would  be  only  advisory."*  The  right  to  punish 
contempts  belongs  exclusively  to  the  court  against  which  the 
offense  was  committed,  since  in  order  to  the  securing  of  obedience 
to  its  orders,  a  court  must  have  the  right  to  inquire  whether 
they  have  been  disobeyed,  and  to  submit  this  question  to  an- 
other tribunal  would  deprive  the  proceeding  of  half  its  ^Sdency.* 
Hub  view  extouls  to  the  trial  ci  c(Hitanpt8  by  jury,  the  alleged 
rii^t  to  such  trial  b«ng  doued.'  Judgmmts  of  contempt  may 
be  taken  for  review  to  a  superior  court,*  such  proceeding,  in  the 
absence  of  special  statutes,  being  governed  by  the  statotea 
generally  applicable  to  the  review  of  judgments. 

Ck>ntempts  are  classed  as  direct,  or  those  committed  in  the 

i  Sailon'  Union  •.  Hammond  Lumber  Co.,  150  Fed.  450, 85  C.C  JL  16 ;  M. 
Bteinert  *  Bona  t.  Tagen.  207  Maa.  8M.  «8  N.E.  S84. 

1  Ex  parte  Robinson,  10  WaU.  (80  U.8.)  506;  B—tta  f.  Conkagr.  IM  VS. 
824.  24  Sup.  Ct.  666. 

*  Oompeta  e.  Boeka  Move  ft  Bante  Co..  221  U.8. 418, 81  Sap.  Ct  402. 

*  In  re  Deba,  158  U.S.  664, 16  Sup.  Ct.  900. 

*  In  re  Deba,  rapra;  Eilenbecker  «.  Plymouth  Co.,  134  U.S.  31, 10  Sup.  Ct. 
424:  O'Brien  a.  People,  816  HL  854, 75  N.B.  108;  Thooaa  t.  Ciaeinnati.  ete., 
R.  Co.,  62  Fed.  80H. 

*  Oompera  a.  Buoka  Stoye  ft  Range  Co.,  87  Waah.  L.  R.  706, 33  App.  D.  C. 
616:  Same  eaaa,  2S1  U.S.  418. 81  Ct  4»i',  tm  part§  Tony,  128  U.S.  MO, 
0Bap.Ct.77. 


324        LAW  or  THE  EMPLOYMENT  OF  LABOR 


presence  of  the  court ;  and  constructive  or  indirect,  by  which 
ore  meant  acts  of  disobedience  or  disregard  of  its  orders  or  writs 
elsewhere  than  its  immediate  presence.  Obviously  contempts 
in  labor  disputes  will  be  mainly  of  the  latter  class.  Various 
attempts  have  been  made  at  legislative  restriction  of  the  power 
of  the  courts  to  punish  for  contemirts,  and  some  laws  of  tiiis 
intent  have  been  wiaeted.  "niese  laws  may  inrovide  tm  jury 
trial  in  cases  of  indirect  contempt/  or  limit  the  penalty  that 
may  be  inflicted  by  the  court.*  All  the  statutes  cited  were 
declared  unconstitutional  by  the  courts  of  the  respective  states 
as  being  unwarranted  interferences  by  the  legislative  branch  of 
the  government  with  the  inherent  rights  and  powers  of  a  codr- 
dinate  branch ;  *  and  it  has  been  broadly  laid  down  that  the 
power  to  protect  itsdf  tnm  contoi^t,  and  also  to  determine 
what  is  a  oontonpt,  is  inherent  in  evwy  court  d  supwior  juris- 
diction, and  that  it  is  not  witlun  the  power  of  the  lecpslature  to 
prevent  the  one  or  abridge  the  other.*  It  was  sud  in  a  case 
involving  a  statute  of  the  state  of  Georgia,  that  a  provision  of 
the  constitution  to  the  effect  that  the  power  of  the  courts  to 
punish  for  contempts  shall  be  limited  by  legislative  acts  does 
not  confer  authority  on  the  legislature  to  define  contempts  and 
restrict  the  jurisdiction  of  a  superior  court,  created  by  the  con- 
stitution, to  those  acts  only  which  are'q)ecified.  Thus  a  statute 

>  Okla.,  Acts  1895,  ch.  13 ;  V*.,  Acta  1897-8,  p.  548. 

*  Mo.,  R.S.,  sec.  3882 ;  Okla.,  Acts  1895,  ch.  13. 

*  SUte  •.  Shephenl.!177  Mo.  234, 78  S.  W.  88 ;  Smith  t .  Speed,  11  Okla.  95. 66 
P»e.Sll;  Cartw'a 08 Va. 805, 82 8.B. 780;  Chicaco, etc.. R. Cat. Gilder- 
sleeve,  219  Ifo.  170, 118  8.W.  88;  BofdMt  f.  CkmaooiPaaMi.  108  Va.  888. 48 
8.E.  878. 

•Cbeadle  t.  State,  110  Ind.  801. 11  N.B.  428;  and  see  O'Brien  •.  People, 
twpn:  Ford  r.  State.  69  Ark.  550, 04  8.W.  879 ;  Andenra  «.  Drop  ForgiBC  Co., 
M  lad.  App.  100. 72  N.E.  277. 


LABOR  DISPUTES 


325 


immding  th&t  the  poww  of  a  court  to  punish  fcxr  mmtempt  shall 
not  extend  to  any  eases  except  misbehavior  in  w  so  near  the 

court  as  to  obstruct  justice,  or  misbehavior  of  an  officer  of  the 
court  in  official  transactions,  or  disobedience  of  a  lawful  writ, 
order,  or  process  of  the  court  ^  is  not  binding  on  a  constitutional 
court,  and  it  may,  in  order  to  preserve  its  constitutional  powers, 
treat  as  contempts  acts  which  clearly  invade  them,  since  the 
power  to  pwush  eontanpta  is  inherent  in  every  court  of  record.' 
A  statute  of  KentuclQr,  however,  limiting  penalties  unless  a  jury 
trial  u  granted,*  was  r^orred  to  in  a  case  More  the  supreme 
court  of  that  state  as  controlling  in  a  possible  case;*  and 
statutes  regulating  procedure  are  doubtless  valid.* 

The  violation  of  an  injunction  may  be  passive  as  well  as  active, 
as  where  the  officers  of  a  labor  organization  fail  to  use  reasonable 
efforts  to  secure  from  members  of  their  unions  obedience  to  the 
iigunctive  order,  if  such  failure  is  i^parentiy  colored  by  bad 
faith.*  Nor  is  an  injunction  a  necessary  condition  precedoit 
to  the  o(»nmiBrion  <rf  acts  of  contempt,  since  in  cases  of  recdvw- 
ships  the  mere  fact  that  the  propwty  is  in  the  hands  of  the  courts 
makes  interference  with  the  receiver;  In  the  performance  of  thdr 
duties  as  officers  of  the  courts  contempt  of  court.'  Where  ein- 

>  Ga.,  Civ.  Code,  aec.  4046. 

*  Bradley  «.  State,  111  Oa.  168,  36  S.E.  ^30 ;  see  abo  Hale  «.  State.  66  Ohio 
St  210.  45  N.E.  199 ;  «x  parte  McCown,  139  N.C.  96.  61  S.E.  967. 

*  Ky.  SUt,  Mc.  1291.  *  UnderhiU  t.  Murphy.  117  Ky.  640, 78  &W.  482. 
>N.Y.,  C.L.,  ch.  30,  wcs.  760-781;  ne  PMple  t.  Dwyer,  90  V.Y.  402; 

People  V.  Court,  101  N.Y.  245;  Wis.,  A.S..  aecs.  3477-3497;  see  Emerson  r. 
Huai.  127  Wis.  216, 1U6  N.W.  618 ;  Vilter  Mfg.  Co.  •.  Humphrey,  132  Wis.  687. 
112  N.W.  1096. 

*  In  re  McCormick,  117  N.Y.  Bnp».  70;  and  we  AlUs-CftataMn  Co.  f.  bon 
Moldera'  Union.  150  Fed.  166. 

*  Davis  t.  Gray.  16  WaU.  (83  U.S.)  208 ;  ThoBM  f.  CiBeionod,  ato.,  S.  Co.. 
nqm;  /»  m  DooUttle,  38  Fad.  844. 


820       lAW  OF  TBI  UIPLOTMINT  OT  UkBOB 


ployees  d  ft  oompany  that  k  ia  tli0  haada  of  ft  iMciver  apiK^^ 
bj  ft  oourt  an  diMatiifiad  with  tlM  wagM  paid  by  him,  th^ 
abandftii  the  anqikymait,  and  by  argument  or  persuasion  in* 
duoe  others  to  do  the  same ;  ^  but  if  they  resort  to  threats  or 
violence  to  induce  the  others  to  leave,  or  accomplish  their  purpose 
without  violence  by  overawing  the  others  by  preconcerted  dem- 
onstrations of  force,  and  thus  prevent  the  receiver  flrom  carry- 
ing on  the  business,  they  are  guilty  of  contempt.*  And  it  has 
been  held  tliat  strikom  wbo  were  employees  of  a  raflroad  not  in 
the  hands  of  a  reodver  are  guilty  of  a  wmtempt,  even  though 
intoidmg  nmie,  if  unlawfully  obstrueting  the  operation  of 
the  road  of  thdr  emidoyer,  not  by  merely  quitting  work,  which 
is  lawful,  but  by  preventing  the  owners  of  the  road  from  mani^- 
ing  their  own  engines  and  running  their  own  cars,  they  thus 
interfere  with  the  operation  of  the  road  which  is  in  the  receivers' 
hands.' 

It  will  be  found  in  the  great  majority  of  cases,  however,  that 
contempt  is  hdd  to  oonast  in  tiie  known  nidation  of  tpm&o 
ord«8,  ianied  by  the  oourta  at  the  iostanee  of  an  aggrieved  iwrty, 
and  that  iwoof  of  the  apeeifio  act  will  be  necessary  to  determine 
giult;  though  incitement  to  violations,  if  manifestly  of  that 
intent,  as  by  speaking  slightingly  or  defiantly  of  the  court  and 
its  order,  will  also  be  regarded  as  contempt.*  What  is  a  con- 
tempt will,  therefore,  be  a  matter  of  fact  to  be  determined  by  the 
circumstances  in  each  case.  An  act  lawful  in  itadf  may  by  its 

>  United  SUtwt.  Kane,  28  Fed.  748;  /»  re  Doolittto,  ntpra;  Axthur  t.  Oakee. 
63  Fed.  310, 11  CCA.  1300. 

•  United  Statee  «.  KiuM,«iqpni; /»  re  27  Fed.  443;  United  SUtee  t. 

Weber,  114  Ped.  860.  » /»  re  DooUttle,  aupra. 

«ao^«  Ba^  Btova  *  Ba^  Co.,  87  Waih.  L.  R.  706, 88  Apip.  D.C 
•16;  Uaitad Statu *.  mspHy .  116 Wti.  Mtt 


LABOR  DISPUTES 


327 


fdatioiM  beeoine  wroogful ;  m  when  one  labor  organiiation  is 
foibiddMi  to  interfere  with  the  members  of  anothor  in  their 
employment,  and  its  officers  levy  fines  against  their  own  mem- 
bers to  compel  them  to  cease  work  in  such  a  manner  as  to  lead 
to  the  discharge  of  the  members  of  the  complaining  imion. 
"The  fact  that  such  fine  imposed  upon  its  own  members  might 
be  entirdy  lawful  and  just,  whm  so  imposed  for  a  lawful  purpose, 
eaimot  justify  its  inllietion  for  a  wn»gful  purpose  in  vidatitm 
of  a  restraining  <«der  of  a  court."  *  The  use  of  the  lug}iway% 
while  in  itself  lawful,  may  be  so  practiced  as  to  interfere  un- 
justifiably with  the  tantamount  right  of  others  whose  freedom 
the  injunction  was  designed  to  protect,  and  so  become  a  conr 
tempt.* 

While  the  courts  are  not  entirely  agreed  on  the  point,  it 
is  said  by  the  Supr^e  Court  that,  where  a  boycott  has  been 
enjiHned,  "the  sbtmg  current  of  authority  is  tiiat  the  publica- 
tion and  use  of  letters,  circulars,  and  printed  matter  may  consti- 
tute a  means  whereby  a  boycott  is  unlawfully  continued,  and 
thdr  use  for  such  purpose  may  amount  to  a  violation  of  the 
order  of  injunction."  *  It  was  said  that  the  question  involved 
was  not  one  of  freedom  of  speech,  but  the  power  of  a  court  of 
equity  to  enjoin  the  continuance  of  "a  boycott  which,  by  words 
and  signals,  printed  or  spoken,  caused  or  threatened  irreparable 
damage."  Whwe  a  boycott  has  heeax  enjoined  and  the  atten- 
tion ni  the  puUie  is  mbsequoitiy  directed  to  the  fact  that  the 
plaintiff  ia  still  regarded  as  unfair  by  tiie  organisation  aipunst 
which  the  iqjunetion  ran,  it  is  clear  tiiat  contonpt  has  heea 

>  Chicago  Federation  of  Muaciana  t.  Musiciana'  Union,  139  lU.  App.  65. 
*MaekaU«.BatehfonI.82Fed.41;  Ideal  Mfg.  Co.  t.  Ludwic.  149  Mich.  183, 
lis  N.W.  7SS. 

•  Chinpm  «.  BimIbi  Mora  4  Bust  Co..  8S1  fJA  418,  SI  8^  Ct ««. 


328        LAW  OF  THE  EMPLOYMENT  OF  LABOR 


committed ;  *  and  the  use  of  the  device  of  publishing  a  list  of 
dealers  or  persons  in  good  standing  with  the  organisation, 
coupled  with  a  statement  that  only  material  from  fair  firms 
would  be  worked  by  imion  labor,  will  not  avoid  conviction  for 
contempt,  even  though  the  imion  professes  readiness  to  explain 
to  dealm  that,  owing  to  the  eristenoe  of  the  injunction,  material 
tnm  the  plaintiff's  tinap  will  be  wwked  deqiMte  the  oinisri<m  ci 
his  name  frmn  the  ^piHoved  Ust'  One  refusing  to  cany  out  a 
court's  order  to  a  railroad  to  supply  equal  facilities  to  all  for  the 
interchange  of  interstate  commerce  is  guilty  of  oonteaq>t,  though 
he  might  have  left  service  with  impunity.' 

From  what  was  said  in  the  foregoing  section  as  to  the  binding 
effect  of  injunctions  on  persons  not  parties  to  the  original  bill, 
it  follows  that  such  persons  are  liable  for  contempt  committed 
in  violi^n  of  the  ugunetlve  csdiw,*  and  tins  is  tirue  even 
tiiou^  tile  party  mic^t,  on  aeeoimt  of  dtisaaship,  have  been 
precluded  from  the  posability  of  being  made  a  party  to  the 
origin^',  bill.'  Otherwise  no  possible  relief  could  be  afforded  a 
plaintiff  by  way  of  any  other  than  the  most  inclusive  "blanket 
injunction,"  and  the  courts  would  be  powerless  to  maintain  their 
effectiveness  or  dignity. 

The  punishment  for  contempt  is  by  fine  or  imprisonment,  or 
both,  aad  is  admuustered  in  tibie  discretion  of  tiw  oonrt.  Where 
damages  are  assessed,  thqr  wSl  of  emirae  be  adjusted  to  the 

>  Gompm  ff.  Bueks  Stove  4  Bute  Co..  37  Waih .  L.  R.  706, 88  App.  D.C.  618 ; 
PMtonont.  BuOdiiicThMleBCoaiieil,  14PK.Diai.  i:V'84S. 

*  Huttig  Sash  ft  Door  Co.  «.  Fuelle,  143  Fed.  363. 

* Totodo,  etc.,  R.  Co.  i.  PeamqrlvKnia  Co.,  64  Fed.  740;  In  r»  Lennon.  lOS 
UJ.848, 178ap.Ct.658. 

*  /n  re  Lennon,  supra;  Conkagp  f.  BuiwH,  1X1  Fad.  417. 
•Conkoy  t.  BuaieU,  ntpra. 


LABOR  DISPUTES 


829 


Inituy  done.  A  oorpmitioa*  or  a  voluntary  modatkm' 

may  be  adjudged  guilty  of  contempt  and  fined,  their  nature 
forbidding  imprisonment,  ttiough  responsible  members  of  an 
unincorporated  union  may  be  con-mitted  to  prison  until  a  fine 
assessed  against  it  is  paid,  this  liability  being  based  on  the  part- 
nership relation  of  the  members  of  a  voluntary  association,  in  the 
view  held  by  the  court.'  Penons  carrying  out  the  mandates  of 
an  organisation  and  thorny  vblating  an  iAjunetimi  cannot 
dttr  the  defoue  of  agmcy,  but  are  thonsdves  guilty  d  con- 
taiq>t  if  they  wwe  aware  of  the  existence  of  the  order.* 

Contempts  are  classed  as  civil  or  criminal  as  the  proceedings 
contemplate  chiefly  the  relief  and  benefit  of  the  complainant 
who  is  injured  by  a  noncompliance  of  thj  defendant  with  the 
injunctive  order,  or  the  punishment  of  the  guilty  person  as  a 
vindication  of  the  authority  of  the  court.  The  line  between 
Htue  two  classes  is  not  always  easy  to  draw,  since  a  nngle  pro- 
ceeding may  partake  ci  the  charaeterisUes  oi  both.*  Pudi^ 
mmt  by  inq|»isonment  may  be  remedial  as  wdl  as  puidtiive,  and 
civil  contempt  proceedings  frequently  result  not  only  in  the  im- 
pontion  of  a  fine  payable  to  the  complainant,  but  also  in  com- 
mitting the  defendant  to  prison.  But  imprisonment  for  civil 
contempt  is  coercive,  to  secure  the  performance  of  the  order  of 
the  court  in  beLalf  of  the  complainant,  and  release  will  follow 
compliance;  whereas  the  penalty  in  a  criminal  procedure  is 

1  Cbicago  Typothcta  f.  Franklin  Union.  30  Chi.  Legnl  News  18;  a£Srraed, 
Fnnldin  Union  t.  FMvIo,  230  lU.  88S,  77  N.B.  170. 

*  A.  R.  Barnea  A  Co.  •.  Chieaso  Typographical  Union,  283  111.  402, 83  N.E. 
932 ;  Pattenon  ».  District  Council,  31  Pa.  Sup.  Ct.  112. 

*  Patterson  «.  District  Council,  tupra. 

*  In  r$  B«Mett9,  111  Fed.  417 :  Oatsow  t.  Bueninc  106  Wia.  1, 81  N.W.  1003. 
*B«Mtte  t.  Conkw.  tupra;  O'Brien  t.  People,  ntpra;  Vflter  Mfg.  Co.  v. 


880     LAM  or  Twm  mmu>YMmn  or  labor 


piiniihiMBt  tat  •  <  ompleted  act  of  <Mb«Ii«oe,  ud  inqxriMii- 
nentiaiHdift  «k  would  bt  for  »  drftatetm.*  .TIwiiilMd 
Mlofo  of  tl»  pwiiotdimi  it  iiMiiif«ift  tan  tho  1^  that  the 

performance  of  the  court's  order  mpenaate  the  comphdn- 
ant  is  a  vindication  of  its  authority ,  while  the  complainant  is 
also  indirectly  benefted  by  the  efifet  v  of  a  criminal  punishment 
to  prevent  a  '•f>{)etttion  of  the  disobedience;  though  such  in- 
direct result  rannot  peratf  o  convert  a  ci  anal  contempt 
into  a  civil  one.'  A.  order  of  court  .  sing  a  fine  for  con- 
tempt astti  directing  that  the  fine  be  ^»  '  ovc  «o  the  ori|^nal 
complalnaat  waa  on  appeal  modified  m  n^^tpeet  ^he  (Uaporition 
to  be  madeof  the  fine, the  court  si^tigt^etii  <rasn  ^tute 
in  the  state  arth  -izing  ti  a  ^>i^  ro  nation  of  a  dne  imp»  =«d  iot 
contempt  of '  irt  ^  thf  party  ir  e  '  by  the  act  constituting 
the  contempt  The  ictK  ^tween  a  refusal  to  do  an  act 
commanded  for  tb^  ^netn  v  compUunant,  and  the  doing 
of  an  act  iotbidim  itfonte  a  ana  for  claaaifying  contempts  aa 
eivil  or  or^Binid.  In  the  former  case  the  original  complainant 
b  a  partr;  in  tht  tier,  <miy  e  state.  In  the  formor  the  rules 
of  evideaea  aad  prooed  re  be  civil ;  in  the  lifter,  eriminal, 
in  ^stvii^  substutial  d-  e^  in  the  rights  and  constitutional 
p    ileges   f  thf>  !efe?  nd  one  improperly  sentenced  or 

hei  pay'     it  u'    .mages  to  a  complainant  on  account 

uf  vit  n  c.  m  inju  nction  may  on  appeal  be  absolved  from 
thu  >t£ga  a  iit  4  yet  be  guilty  of  contempt  of  court  and 
liab*e  to  '  urn  meaxt  'rintwally.* 

lOomTK  ,i.B'icln8to       Ranee  Co.,  22rU.S.  418. 31  Sup.  Ct  492. 

*  Gompera  ».  L.ick8  Stov^  i  Hance  Co.,  cupro. 

*  A.  R.  Bamw  4k  Co. «.  CUeaco  Tjrpograidiioal  Union,  mtfim. 
«aompeni.  Btieka8toTe*BangeCo.,3aiUJS.418,Sl  8iip.Cttt2;  Woi^ 

.dn»  SMMia,  131  VA  14. 


XJLBOR  DiaPUTBS 


331 


An  laittBelioi.  agaimfc  inU^erenoe  the  mails  or  intentftte 
^fymiamm^^  OT  wtth  pHvate  buslness,  may  be  violated  by  the 
eommianon  of  criminal  acts.  These  are  of  course  punishable  as 
contempts,  since  they  are  acts  of  disobedience  to  the  orders  of 
the  court,  but  are  none  the  less  indictable  as  crimes,  whether 
the  contempt  was  civil  or  criminal.'  "  A  court  enforcing  obedi- 
ence to  its  orders  by  proeeedinf*  foe  oontempt  is  not  executiag 
the  erimiaal  Iftwe  of  the  land,  but  only  aeeiiring  to  miitois  the 
lights  >x-itieh  H  has  adjudged  them  entitled  to."  * 

CteonON  128.  Mediation  and  Arbitration.  —  In  the  matter  of 
the  adjustment  of  labor  disputes,  it  is  obvious  that,  as  in  any 
other  class  of  disputes,  the  parties  may  agree  to  terms  of  settle- 
ment suggested  by  friendly  interveners,  or  may  agree  to  refer 
the  question  in  dispute  to  a  person  or  committee  chosen  for  the 
purpose.  No  question  of  enforcement  or  of  legal  c(»istructi(m 
could  wdl  ariaeumltf  such  droumstaneee,  nnoe  adjustmoits  of 
thla  lort  take  form  and  effect  entirely  from  the  mutual  agree- 
ment of  the  partiee  in  intereet.  As  favoring  the  peaceful  settle- 
ment of  labor  disputes  in  lieu  of  resort  to  strikes  and  lockouts, 
laws  have  been  enacted  in  more  than  one-half  of  the  states  of 
the  Umon,  and  by  Congress,  providing  for  the  formation  of 
boards  or  tribunals  for  the  adjustment  of  cases  submitted  to 
them.  Submiswon  may  be  made  on  the  motion  of  the  parties, 
or  of  either  of  them,  as  the  law  may  provide ;  while  in  some  in- 
■tunoes  intCTventi<m  is  autiKmied  on  Hut  initiative  of  the  board 
or  of  a  local  municipal  ofllcer.  The  duty  of  preUmmary  inquiry 
and  of  »"«^i"g  efforts  at  mediation  may  devolve  under  the 
■tatute  on  the  commissioner  of  lab^  of  the  state,  either  on  his 
own  initiative  w  by  request 


332        LAW  OF  THE  EMPLOYMENT  OF  LABOR 


The  law  may  provide  for  a  state  board,*  or  for  local  boards,' 
or  for  both  state  and  local  boards.*  Where  the  latter  provision 
exists,  the  local  boards  may  be  authorized  to  ask  for  advice  and 
assistance  from  the  state  boards,*  or  they  may  be  independent 
and  have  full  powers  of  action.*  The  methods  of  constituting 
the  boards  vary,  though  it  is  usually  provided  that  their  mem- 
bership shall  represent  both  employers  and  oni^oyed.  State 
boardfl  are  commonly  appdnted  by  the  govenu»«,  while  local  or 
special  boards  may  be  selected  by  theoourtw  judge  having  jur- 
isdiction in  the  locality,  or  the  members  may  be  chosen  one  by 
the  employer,  one  by  the  workmen,  and  a  third  by  the  first  two. 
If  the  dispute  is  one  involving  the  membership  or  interests  of 
a  labor  organization,  such  organization  may,  according  to  the 
provisions  of  a  number  of  statuses,  have  representation  on  the 
board. 

Mediation  is  the  attempt  to  i»ocure  an  agreonent  befcwaen  the 
parties  by  such  mutual  conoesrions  as  eoosidaratiosi  and  advice 
may  result  ui.  It  is  made  the  duty  of  nearly  all  the  state  boards 
to  attempt  mediation  when  information  is  received  of  actual  or 
threatened  difficulties.  Arbitration  involves  a  hearing  of  the 
parties  and  an  award  based  on  the  apparent  equities  of  the  case. 
This  will  not  be  usually  imdertaken  except  on  the  request  of  the 
parties  or  of  one  of  them,  and  is  binding  only  as  assented  to  by 
both  parties  in  the  i4>i^cation  m  orasent  f<v  robrnfaakm.  Ap- 
plicants are  obligated  to  maintain  unehanfed  the  status  of  enn 

>CaI..  Aeta  1881,  di.  81:  Cobb.,  QM..  mm.  4708-4718;  HL,  RA.  d».  10, 
aeca.  19-26;  Mais.,  Acta  1900,  eh.  814,  teet.  10-10;  Minn.,  R.L.,  mm.  1828- 
1884 ;  N.Y.,  C.L..  oh.  31,  Moa.  140-148 ;  Ohio,  0«n.  Code,  aeoa.  1069-1070. 

•  Kmm.,  O.8.,  aew.  888-841;  Md.,  Pub.  O.  Lh  Alt.  7.  mm.  1-9,  AMt  ION, 
oh.  813 ;  Pa.,  B.P.  Dig.,  p.  132,  aeea.  68. 07-70. 

•  Cal.,  Maaa.,  Minn.,  N.Y..  ate. 

«Ma»,.OIio.  •llin,.N.T. 


LABOR  DISPUTES 


333 


ployment  conditions  until  the  determination  of  the  board  can  be 
reached.   Provision  is  made  in  most  instances  for  the  attendance 
of  witnesses  to  be  enforced  by  subpoenas,  and  one  or  all  the 
members  of  the  boards  are  authorized  to  administer  oaths  in 
respect  of  the  matters  connected  with  the  performance  of  th«r 
duties.  It  is  provided  in  some  statutes  that  pwmns  disobeying 
the  subpoenas  or  rehiring  to  tatswec  the  questions  propounded 
by  the  board  shall  be  certified  to  a  court  of  the  county  or  district 
and  punished  for  contempt  In  this  connection  may  be  noted 
a  decision  of  the  supreme  court  of  Missouri '  declaring  this 
provision  of  the  statute  of  that  state  unconstitutional  and  void, 
since  the  court  has  no  power  to  exercise  such  a  prerogative  ex- 
cept in  administering  justice  in  cases  before  it  in  its  own  juris- 
diction, and  cannot  so  act  in  behalf  of  any  other  body  or  tribunal, 
even  another  court  The  court  did  not  dispute,  however,  the 
power  of  the  legislatttre  to  make  a  refusal  to  testify  a  misde- 
meanor, punishable  by  fine  and  imprisonment  by  a  court  of 
oompetent  jurisdicticm.' 

The  methods  proposed  for  enforcing  obedience  co  awards  by 
the  boards  are  various.  Some  statutes  depend  upon  publicity 
alone,  though  in  others  they  undertake  to  give  the  decisions  the 
effect  of  a  judgment  of  a  court  of  law,  to  be  enforced  by  execu- 
tion; whUe  in  others,  disobedience  is  made  punishable  as  for 
oontempt  of  court  It  is  to  be  borne  in  mind  that  these  pro- 
viskms  apply  only  iHrnn  there  has  been  an  agreement  to  submit 
the  question  and  to  abide  by  the  awards  of  the  boards,  there 
being  no  statute  that  provides  for  actual  compulsory  arbitrar 

I  state  •.  Ryan.  182  Mo.  349. 81  S.W.  435. 

t  gas  Intantata  Commatea  CommiMion  t .  Brivuon.  164  U.S.  447,  IS  Sup.  Ct. 
It,  aa  to  tlta  power  of  a  eom^Hfea  to  oaB  oa  a  eoiat  te  tiaa  Ha  pvmft  to  aaeua 
tha#Tli^aHw>lniar. 


834        LAW  OF  THB  EMPLOYMENT  OF  LABOR 


tkm  and  the  aMeptanee  of  awaivb.  Bat  even  so,  the  power  of 

a  court  to  take  over  and  enforce  the  findinp  of  audi  a  tribunal, 
whether  this  enforcement  is  to  be  by  means  of  contempt  pro- 
ceedings or  otherwise,  is  of  at  least  doubtful  feasibility  imder 
the  controlling  provisions  of  the  constitutions  of  the  various 
states  and  of  the  United  States. 

An  instance  of  an  attmqit  to  comlnne  functions  appears  in  a 
statute  of  Kansas,^  iriuoh  mklertook  to  wtaWiwh  a  "court  oS 
visitatkm,"  with  jurisdietkm  over  the  operations  of  raiboada. 
This  court  waa  to  have  power  to  make  and  enfwoe  <»den  to  the 
extent  of  appointing  a  receiver  for  any  road  not  complying 
therewith.  It  was  also  authorized  to  issue  orders  and  compel 
obedience  thereto  in  cases  of  disputes  affecting  railroad  em- 
ployees. This  law  was  declared  unconstitutional  by  both  state 
and  federal  courts  as  being  an  attempt  to  confer  on  a  single 
body  legislative,  adminwtrative,  and  judidal  powm,  cmxtrary 
to  the  provyou  of  the  eoostitutkm.' 

The  costs  of  hearing  before  these  boards  are  usually  to  be  met 
by  the  state,  though  in  some  States  the  parties  having  recourse 
to  the  boards,  or  in  whose  behalf  they  are  formed,  are  charged 
with  the  costs,  their  apportionment  being  a  part  oi  the  award 
which  it  is  the  duty  of  the  board  to  make. 

From  the  nature  of  the  tribunals  and  the  objects  for  which  they 
are  created,  it  is  natural  that  there  should  have  been  but  little 
judicial  eou8iderati<m  given  to  the  laws  establishing  them  <»>  to  the 
(^>aiitions  oi  the  boards  themsdves.  The  statute  of  Bficfaigan  * 

>  Aeti  180S^.  A.  98. 

* Stote  ».  Johiutoii.  «^  ~  -i.  108, SO  tmo.  106I;  WmIi  m  XJalaa  Tri.  Co.  t 
Myatt,  M  Fed.  336. 

« C.L.. mm.i»tin,m.  lawiitd ty  Ha. IS.  JMt  IMS;  wnmlH  ifay  1« 
1911. 


LABOR  DISPUTES 


335 


pcovidfld  for  attale  botrd  appointed  by  the  gonraor.  Eedi 
aibHntor  ccnild  •dminister  oaths,  and  the  secretary,  not  a  mem- 
ber of  the  board,  might,  vmder  the  direction  of  the  court,  sub- 
poena witnesses,  administer  oaths,  and  compel  the  production 
of  books,  papers,  and  documents,  the  same  as  courts  of  record. 
The  constitution  of  the  state  provides  that  "the  legislature 
may  establish  courts  of  conciliation  with  such  powers  and 
duties  as  shall  be  preecribed  by  law."  No  provision  was  n»de 
for  the  enforcement  of  awards,  and  the  submission  of  disputes 
was  of  course  vohmtaiy.  In  a  case » in  which  the  constitutional- 
ity of  tiie  statute  was  challenged,  it  was  upheld  by  the  supreme 
court  of  the  state.   As  the  case  was  presented  it  involved  -  r  e 
validity  of  an  order  for  a  rehearing,  one  of  the  parties  tr  an 
arbitration  having  secured  such  an  order  because  of  dissatis- 
faction with  the  award.  The  court  held  that  the  law  gave  the 
board  no  power  beyond  that  of  rendering  and  filing  a  dedsion, 
and  that  in  granting  a  rehearing  it  had  exceeded  its  authority. 
In  another  ease*  involving  the  same  law,  whwe  there  had  been 
« imlmfr*^  under  an  agieement  to  abide  by  the  decision  reached 
in  leferenee  to  prices,  it  was  contended  by  one  of  the  parties 
that  an  award  substituting  piece  rates  for  wages  by  the  day 
eneeded  the  authority  of  the  board  under  the  terms  of  sub- 
mission.  The  supreme  court  held  that  if  the  board  had  in  fact 
exceeded  the  terms  of  submission,  the  contention  would  be  a 
valid  one,  but  since  the  question  was  one  of  {Hrices,  and  evidence 
as  to  both  time  and  piece  rates  had  been  heard  without  objec- 
tion, the  eourt  had  not  eiceeded  its  powers.  Another  point  in 
qxurikia  was  the  oomtruetkm  to  be  put  on  a  proviso  to  the 

» Bwua  t.  Stete  Oottft  of  BI««rth»t  «»e..  124  Mich.  648, 83  N.W.  620. 
•riiWM*.  8ta«CiMrt«l  IMMi<».  ctoH  lao  Miefa.  229. 88  N.W.  048. 


336       LAW  OF  THE  SMFLOTMBMT  OF  LABOR 


effect  that  decisions  should  be  rendered  within  ten  days  after  the 
hearing.  The  supreme  court  constriMd  this  as  directory  only, 
and  not  numdatory,  and  a  dday  of  twelve  days  adcBtimial  was 
held,  in  tiie  drcunutanees,  not  to  invalidate  the  award. 

The  statute  of  Louisiana  ^  was  enacted  under  the  authority 
granted  to  the  legislature  by  the  constitution  "to  pass  such  laws 
as  may  be  proper  and  necessary  to  decide  differences  by  arbitra- 
tion." It  provides  for  efforts  at  conciliation  in  cases  of  labor 
dbputes  on  the  application  of  the  parties,  or  either  of  them, 
or  of  the  mayor  of  a  city  or  of  the  judge  of  a  district  court.  No 
provistcm  is  made  for  the  enforoem«it  of  «iy  finding  of  the 
board,  but  if  its  efforts  at  mediation  fail,  its  conclurions  are  to  be 
recorded  on  its  books  and  abo  at  once  made  public.  In  a  case  ' 
in  which  a  request  for  intervention  had  been  made  by  an  as- 
sociation claiming  to  represent  the  employees  of  a  street  railway 
company  (which  claim  the  company  denied),  the  company 
refused  to  join  in  the  request,  and  asked  for  an  injunction  to 
restrain  the  board  from  making  any  decision,  on  the  ground  that 
such  action  would  cause  trouble  and  dissemiim  among  its  em- 
ployees. Irregularities  were  assorted,  and  the  need  of  inter- 
vuiti<m  deoaod.  The  maymr  of  the  dty  had  sent  a  statement 
as  to  stanuned  conditions  and  suggested  an  investigation.  The 
supreme  court  of  the  state  held  that  no  restraint  by  injunction 
would  be  proper  on  a  suggestion  of  the  mere  apprehension  of 
injury,  and  that  before  it  could  act  on  questions  of  alleged 
irregularity  they  should  be  argued  before  the  board  and  de- 
cided upon  by  it.  The  board  was  said  to  be  one  of  ccmciliation, 
with  no  power  but  to  form  and  reowd  a  dedsion,  and  without 

>Aete  1804,  No.' 139. 

•  B«faMi«  O0.  t.  State  Bond  Of  AiMtartbii.  «r  U.  Aaa.  874. 17  80. 418. 


LABOR  DISPUTES 


837 


judicial  function.  It  is  not  bound  by  technical  rules  of  legal 
procedure,  but  must  coiiform  to  the  statute  under  which  it 
exists,  and  should  "observe  the  broad  rules  of  law  and  equity 
without  which  a  decision  cannot  be  just." 

The  federal  statute  relative  to  mediation  and  arbitration,^ 
popularly  known  as  the  Erdman  Act,  relates  only  to  common 
carriers  and  their  officers,  agents,  and  employees  engaged  in 
interstate  commoroe,  exc^t  masters  of  vessels  and  seamen. 
The  act  provides  for  a  commission  consisting  of  a  member  of 
the  Interstate  Commerce  Commission  or  of  the  Court  of  Com- 
merce, designated  for  this  duty  by  the  President,*  and  the 
United  States  Commissioner  of  Labor.    This  commission  is  to 
exercise  its  functions  as  a  mediator  on  the  request  of  either  party 
to  a  controversy  between  the  carrier  and  its  employees,  concern- 
ing wages,  hours  of  labor,  or  conditions  of  employment.  If 
mediation  and  condliatitm  fail  to  lead  to  an  amicable  settiement 
<tf  the  difficult,  tb»  commission  is  tc  at  once  endeavor  to  bring 
about  an  artatration  ci  the  controvmy.  The  board  of  arbitrar 
is  to  consist  of  three  members,  one  named  by  the  company, 
one  by  the  labor  organization  representing  the  employees  af- 
fected, and  the  third  by  the  first  two ;  if  the  persons  named  by 
the  parties  fail  to  nominate  the  third  member  within  five  days 
from  their  first  meeting,  the  commissioners  for  mediation  may 
name  him. 

Submisnon  to  arbitration  is  by  stipulations  signed  by  both 
parties,  who  agree  under  liability  for  damages  to  maintain  the 

>  UJ3.  CkMBp.  SUt..  p.  S205.  30  Stet.  424. 

•  Prior  to  the  act  of  March  4.  1911  (88  SUt.  1387),  makiiic  thii  provkion 
M  to  designation  by  the  Freiident.  th«  ehaifmaa  of  the  Interatata  CMsmoiM 

rnmmlMinn  irai  fluil  nrnn  hy  th^  iTrrntr  *^  "*  .Wm.  «f  moHt— 

tioa. 


338        LAW  OF  THE  XMPLOTMENT  OF  LABOB 


^^«iitn  status  poidioff  the  deeak»  ot  Uw  boud,  by  wfaioh  they 
prombe  to  dtdde.  Bquity  may  enlwoe  the  award  so  far  as  its 
pow«n  estend.  It  hai  ah«ady  been  noted  that  equity  cannot 
compel  the  performance  of  a  labor  contract  against  the  will  of 
any  person.  Dissatisfaction  with  the  award  is  not  to  be  a  ground 
for  withdrawal  or  discharge  from  employment  within  three 
months  from  its  rendition  unless  the  party  wishing  to  terminate 
the  relation  ^ves  the  other  party  thirty  days'  notice  in  writing. 
Awards  continue  in  effect  for  «m  year  from  the  date  of  their 
going  into  operat  on.  The  MMrd  is  to  be  filed  in  tlie  dflris's 
fMoe  <d  a  oireuit  waxi  of  the  United  States  within  thirty  days 
from  the  appointment  of  the  third  arbitrator,  and  is  to  go  into 
effect  and  judgment  be  entered  upon  it  within  ten  days  from 
the  date  of  its  filing  unless  exceptions  for  matter  of  law  are  filed, 
in  which  case  the  operation  of  the  award  is  suspended  until 
determination  is  made  by  the  court  as  to  the  exceptions.  This 
deeuBon  is  to  beeome  tin  huia  d  a  judgment  at  the  eqnntlon 
of  ten  days  unkes  within  that  time  an  i^jpeal  is  taken  to  a  cir- 
cuit court  of  i^jpeals. 

There  is  little  from  which  to  determine  the  judicial  construc- 
tion of  this  act.  A  case  involving  the  determination  by  arbi- 
trators of  four  points  in  issue  between  a  railroad  company  and 
an  order  of  telegraph  operators  *  resulted  in  objections  by  the 
telegraphers  to  the  award  in  two  points,  and  a  request  for  an 
entry  of  judgment  as  to  the  rwnaining  two  points.  The  first 
item  submitted  was  as  to  whether  the  memben  of  the 
telegraphers'  order  employed  bj  the  eompaay  sfaoold  "legislate 
for"  or  aet  in  behalf  of  its  train  diq^tchers  in  the  matter  of 
wages  and  in  arl»toation  rm*— *"1P  On  tl^  pant  the  ar- 
1 /»  M  ioi^m  ftatt*  Ob..  IH  VmHOM. 


LABOB  DISPUTES 


339 


Utrmton  decided  in  the  negative,  though  the  tnia  dkpatehen 

were  for  the  ami  part  members  of  the  order  and  had  voted  to 
authorize  the  operators  to  so  act  in  their  behalf.  The  arbi- 
trators rejected  the  contention  of  the  organization  that  only  the 
question  of  agency  was  submitted,  since  no  mere  matter  of 
simply  determined  fact  would  have  been  referred  for  deciaon, 
but  that  the  fair  and«ratanding  of  the  submission  was  as  to  the 
questkm  of  prin<^;de  m  val&ey  affecting  the  relations  df  tin 
parties  and  the  methods  of  ooodueting  the  dealin«i  of  the  on- 
ployer  with  its  dispatchers ;  and  on  a  ahowing  by  tiie  company 
that  the  duties  of  di^atchers  were  essentially  different  from 
those  of  operators,  and  that  the  two  bodies  of  employees  were 
generally  classed  as  distinct,  the  award  of  the  arbitrators  was 
affirmed.  The  second  contention  was  that  a  specific  portion  of 
the  award  was  not  responsive  to  the  terms  of  the  submission. 
Thia  the  court  found  to  be  well  founded,  and  the  plea  of  the 
oonqMoy  to  be  allowed  to  offer  an  inteipretatton  of  the  dauae 
of  the  8ubmiari<m  under  ocmminaticm  was  refused,  the  court 
holding  that  where  there  was  no  ambiguity  thoe  was  no  nma 
f<w  interpretation.  It  was  said  that  the  act  providing  for  ar- 
bitration put  the  proceedings  on  no  different  footing  from  that 
of  common-law  arbitrations,  i.e.,  that  they  rest  entirely  on  the 
agreements  made  by  the  parties,  from  which  alone  the  arbitrators 
dflfhre  their  authority.  "While  the  proceeding  is  judicial  in  its 
eharaeter,  the  relatioii  of  the  parties  is  purely  a  C(mtractual  one; 
and  in  no  respect,  other  perhaps  than  hi  the  applieation  of  the 
rules  of  evidence,  does  the  proeeedbg  partake  of  the  nature  of  a 
civil  action."  The  rules  that  govern  are  therefore  those  that 
relate  to  the  construction  and  interpretation  of  contracts  rather 
than  to  pleadings  in  a  suit  at  law;  so  that  if  any  award  is  not 


1 1^1 


840       lAW  OF  THl  IMPLOYMBIT  Of  LABOR 

responsive  to  the  terms  of  submisrion  ■•  thfly  would  be  oidlii«ay 
understood,  it  is  not  binding  upon  the  pwrtk^ 

As  to  the  request  f or  entoy  d  judiBMO*  « the  unoontro verted 
portione  of  the  ewerd.  the  court  ruled  that,  under  the  provisions 
of  the  art  lovemiiig  eiceptlons  end  appeals,  no  judgment  could 
be  entered  prior  to  ten  days  after  the  determination  of  the  ex- 
oeptiona;  and  that  moreover  the  general  rules  apphcable  m 
proceedings  of  this  sort  did  not  provide  for  the  enforcement  d 
awards  by  piecemeal,  since  each  item  would  doubtless  be  decided 
in  contemplation  of  aU.  the  others,  so  that  while  formally  sep*- 
table,  the  award  must  as  a  matter  of  fact  be  regarded  ae  a  umt» 
and  indivisible  for  puipoeee  ol  enforocment. 


APPENDIX 


Folloinn^  is  the  Field  Code  (see  sec.  4),  here  reproduced  M 
presMiting  m  a  eoneise  form  the  general  rules  of  the  oomnKm 

law  governing  the  employment  of  labor.  The  numbering  of  the 
sections  is  that  used  in  the  Civil  Code  of  Montana,  1895. 

Section  2650.  The  contract  of  emplojrment  is  a  contract 
by  which  one,  who  is  called  the  employer,  engages  another,  who 
is  called  the  employee,  to  do  something  for  the  benefit  of  the 
employer  or  of  a  third  person. 

Sec.  2660.  An  employer  must  indemmfv  his  employee,  except 
as  preteribed  in  the  next  section,  for  all  tnat  he  neceasarliy  ex- 
pends or  loses  in  direct  consequence  of  the  discharge  of  his  duties 
as  such,  or  of  his  obedience  to  the  directions  of  the  employer, 
even  though  unlawful,  unless  the  employee,  at  the  time  of  obey- 
ing such  directions,  believed  them  to  be  unlawful. 

Sec.  2661.  An  employer  is  not  bound  to  indemnify  his  em- 
ployee for  losses  suffered  by  the  latter  in  consequence  of  the 
ordinary  risks  of  the  business  in  which  he  is  employed. 

Sec.  2662.  An  employer  must  in  all  cases  indwnnify  his 
employee  for  losses  caused  by  the  fwmer's  want  ci  otcaaary 
care. 

Sic.  2670.  One  who,  without  consideration,  undertakes  to 
do  a  service  for  another,  is  not  bound  to  perform  the  same,  but 
if  he  actually  enters  upon  its  performance,  he  must  use  at  least 
slight  care  and  diligence  therein. 

Sec.  2671.  One  who,  by  his  own  special  request,  induces 
anothor  to  intrust  him  with  the  performance  of  a  service,  must 
perform  the  same  fully.  In  other  cases,  one  who  undertakes  a 
gratuitous  serv?-"  may  relinquish  it  at  any  time. 

Sec.  2672.  A  gratuitous  employee,  who  accepts  a  written 
power  of  attorney,  must  act  under  it  so  long  as  it  remains  in 
force,  or  until  he  gives  notice  to  his  employer  that  he  will  not  do 

■0. 

841 


842       hkW  or  TBI  IMFLOTlflNT  Or  LABOR 

Sbc.  2673.  One  who,  for  a  good  oonsderstion,  agren  to 
another,  muat  perform  the  service,  and  must  use  ordinaiy  eara 
and  diligence  therein,  so  long  as  he  is  thus  employed. 

Sbc.  2674.  One  who  is  employed  at  hia  own  request  to  do 
that  which  is  more  for  his  own  advantage  than  for  that  of  lus 
employtir,  must  use  great  care  and  diligence  therem  to  protect 
the  intereat  of  the  latter.  *u 

Sbc.  2675.  A  contract  to  render  penonal  service,  other  tban 
a  contract  of  apprenticeship,  •  •  •  cannot  be  enforced 
asaiiMt  the  employee  beyond  the  term  of  two  years  from  the 
commencement  of  service  under  it ;  but  if  the  employee  volun- 
tarily continues  his  service  under  it  beyond  that  time,  the  eon- 
tract  may  be  referred  to  aa  affording  a  pnmuapwn  meaMire  of 
the  compensation.  ,       .  „         ,     ...  „ 

Sbc.  2676.  An  employee  muat  aubstantially  comply  with  all 
the  directions  of  his  employer  concerning  the  service  on  which 
he  is  engaged,  except  where  such  obedience  is  imposmbto  or  un- 
Uwful,  or  would  impose  new  and  unmaoaable  buidcM  upon 

the  employee.  ,      . .       .    .   .  ^ 

Sbc.  2677.  An  employee  must  perform  hta  service  m  eonform- 
ity  to  the  usage  of  the  pUce  of  performance,  unlws  otherwise 
directed  by  his  employer,  or  unless  it  is  impracticable,  or  mam- 
festly  injurious  to  his  emj^yer  to  do  so. 

Sbc.  2678.  An  employee  is  bound  to  exercise  a  reasonable 
degree  of  skill,  unless  his  employer  has  notice,  before  employing 
lum.  of  his  want  of  skill.  ,      ,  .  ,  n 

8mc.  2679.  An  employee  is  always  bound  to  use  such  skill  as 
hejxwsesses,  so  far  as  the  same  is  required,  for  the  service  speci- 

Sisc.  2680.  Everything  which  an  employee  acquires  by  virtue 
of  his  employment,  except  the  compensation,  if  any,  which  is 
due  to  him  from  his  employer,  belongs  to  the  latter,  whether 
acquired  lawfully  or  unlawfuUy,  or  durinsc  or  after  the  expiration 
of  the  term  of  his  wnployment.  j    *  u- 

Sec.  2681.  An  employee  must,  on  donand,  render  to  nis 
employer  just  accounts  of  all  his  transactions  in  the  course  of 
his  service,  as  often  as  may  be  reasonable,  and  must,  without 
demand,  give  prompt  notice  to  Lis  employer  of  everythmg  which 
he  receives  for  his  account. 

Sec  2682.  An  employee  who  receives  anjrthmg  on  accouni 
of  his  employer,  in  any  capacity  other  than  that  of  a  mere  ser- 
vant, is  not  bound  to  dalhrw  it  to  him  unttt  d«nand«l,  and  is 


APPENDIX 


848 


not  at  liberty  to  send  it  to  him  from  a  distance,  without  dwnand, 
in  ^ny  mode  involving  greater  risk  than  its  retention  by  the 
em'^tMyee  himMif.  ^    .  . 

^BC.  2683.  An  employee  who  has  any  business  ^'f^ftS 
on  his  own  account,  similar  to  that  intrusted  to  Mm  by  Mi 
employer,  must  always  give  the  latter  the  preference. 

Sec.  2684.  An  employee  who  is  expressly  authorized  to 
employ  a  substitute  is  liable  to  his  principal  only  for  want  of 
or^nwy  care  in  his  selection.  The  nibftitttte  u  directly  n- 
■xmsibie  to  1^  principal.  ,   . ,  . 

^■C  3885.  An  employee  who  is  guilty  of  a  culpable  degree 
of  negligence  is  liable  to  his  employer  for  the  damage  thereby 
eaused  to  the  latter ;  and  the  employer  is  hable  to  him,  if  the 
aervice  is  not  gratuitous,  for  the  value  of  such  ■enneca  only  as 
are  properly  rendered.  .... 

Sec.  2686.  Where  service  is  to  be  rendered  by  two  or  more 
persons  jointly,  and  one  of  them  dies,  the  survivor  must  act 
alone,  if  the  service  to  be  rendered  is  such  as  he  can  rightly 
perform  without  the  aid  of  the  de«^<w8ed  pewon,  but  not  other- 

Sec.  2700.  Every  employment  in  which  the  power  of  the  otbj 
ployee  is  not  coupled  with  an  interest  in  its  subjeet  is  termmated 

by  notice  to  him  of : 

1.  The  death  of  the  employer ;  or, 

2.  His  legal  incapacity  to  contract. 

Sec.  2701.  Every  employment  is  terminated : 

1.  By  the  expiration  of  its  apik>inted  term. 

2.  By  the  extinction  of  its  subject. 

3.  By  the  death  of  the  employee ;  or, 

4.  By  his  legal  incapacity  to  act  as  such. 

Sec.  2702.  An  employee,  unless  the  term  of  his  service  has 
expired,  or  unless  he  has  a  right  to  discontinue  it  at  any  time 
without  notice,  must  continue  his  service  after  notice  of  the 
death  or  incapacity  of  his  employer,  so  far  as  is  necessary  to  pro- 
tect from  serious  injury  the  interests  of  the  employer  s  successor 
m  interest,  until  a  reasonable  time  after  notice  of  the  facts  has 
been  communicated  to  such  successor.  The  successor  must 
compensate  the  employee  for  such  service  accordmg  to  the 
terms  of  the  contract  of  employment.  .«  .  * 

Sec.  2703.  An  employment  having  no  specified  term  may 
be  terminated  at  the  will  of  either  party,  on  notice  to  the  other, 
«soept  wh«re  othenrae  lurovided  by  this  title. 


844        LAW  OF  TBI  UiPLOTMINT  OF  LABOR 

8tc.  2704.  An  employment,  even  for  a  q>ecified  term  mav 
be  termi^'ted  at  any  time  by  the  employer,  in  case  of  any  will- 
ful breach  of  duty  by  the  employee  in  the  courae  of  hia  employ- 
ment, or  in  case  of  his  habitual  aai^Ml  of  Ida  ddgr  or  MnynuM 
inoHMMA^  to  perform  it 

Sao.  2705.  An  employment,  em  for  a  ipeeified  term,  may 
be  terminated  by  the  employee  at  any  time,  in  case  of  any  will- 
ful or  permanent  breach  of  the  obligations  of  his  employer  to 
him  as  an  employee. 

Sec.  2706.  An  employee,  dismis^^^ed  by  his  employer  for  good 
cause,  is  not  entitled  to  any  compcusation  for  services  rendered 
since  the  last  day  tqMtt  wntcdi  ft  p^nniol  beouw  due  to  hfan 
under  the  contract. 

Sue.  2707.  An  employee  who  quits  the  service  of  his  employer 
for  good  cause  is  entitled  to  such  proportion  of  the  compensation 
which  would  become  due  in  case  of  full  performance  as  the 
•wvices  which  he  has  ninttd  ■  rendsrod  bear  to  the  lervioea  which 
he  was  to  render  as  j11  performance. 

Sec.  2720.  A  servant  is  one  who  is  employed  to  render  per- 
sonal service  to  his  employer,  otherwise  than  in  the  pursuit  of 
aa  indenendrut  calling,  and  who  in  such  service  remains  entirely 
under  the  control  and  direction  of  the  latter,  who  is  csIImI  his 
master. 

Sec.  2721.  A  servant  is  presumed  to  hav^  been  hired  for  such 
length  of  time  tte  tiie  parties  adopt  for  t) '  '^Umation  d  wages. 

A  hiring  at  a  yeai./  rate  is  presumed  to  he  for  ov  ;  yt;ir ;  a  hiring 
at  a  dMly  rate,  for  one  day ;  a  hiring  by  piect»work,  i  or  no  speci- 
fied term. 

Sac.  2722.  In  the  absence  of  any  agreement  ox  custom  as  to 
tile  term  of  serviee,  the  time  of  payment,  or  rate  or  value  of 
wages,  a  servant  is  presumed  to  be  hired  by  the  month,  at  a 
monthly  rate  of  reasonable  wages,  to  be  paid  when  the  service 

is  performed. 

Sec.  2723.  Where,  after  the  expiration  of  an  ar;  ^  ement  re- 
specting the  wages  and  the  term  of  service,  tiie  p&'  -ja  continue 
the  relation  of  master  and  servant,  tiicy  are  {nwiuacd  to  have 
reiMwed  the  apeemoxt  for  the  same  wages  and  term  of  service. 

Sbc.  2724.  The  entire  time  of  a  domestic  servant  belongs  to 
the  master ;  and  the  time  of  other  servants  to  tnA  eactent  as  is 
usual  in  the  business  in  which  they  serve,  .  .  . 

^G.  2725.  A  servKit  miBt  ^ver  to  Mi  mastor,  as  soon  as 
witii  reasonaMe  djHjanwe  ha  eau  find  hem,  emytlmg  that  he 


APPENDIX 


845 


receives  for  his  account,  without  demand ;  but  he  is  not  bound, 
wiUwut  ordon  from  his  master,  to  send  anything  to  him  through 
■Bother  penon. 

Skc.  2726.  A  master  may  discharge  any  servant,  other  than 
an  apprentice,  whether  engaged  for  a  fixed  term  or  not: 

1.  U  he  ia  guilty  of  misconduct  in  the  course  of  his  service,  or 
of  gross  immorality,  thoiub  unconnected  with  the  same ;  or, 

2.  If,  being  employed  aboot  the  prnon  of  the  master,  or  in  a 
confidential  position,  the  master  discovers  that  he  has  been 
guilty  of  misconduct,  before  or  after  the  commencement  of  his 
MTvice,  of  such  a  nature  that  if  tiie  master  had  known  or  con- 
templated it,  he  would  not  have  so  eraploynl  him. 

Sec.  2760.  One  wtio  ofliciously,  and  without  the  consent  of 
the  real  or  apparent  owner  of  a  thing,  takes  it  into  his  possession 
for  the  purpose  of  rendpring  service  about  it,  must  complete  mioh 
service,  and  use  ordinary  care,  diligence,  and  reasonable  ddll 
about  the  same.  He  in  not  entitled  to  any  compensation  for  his 
service  or  expenses,  except  that  he  may  deduct  actual  and  neces- 
sary expenses,  incurred  by  him  about  such  service,  from  any 
profits  which  his  service  has  caused  the  thing  to  acquire  lor  ito 
owner,  and  must  account  to  the  owner  for  the  residue. 


LIST  OF  CASES  CITED 


Adair  ff.  United  Statae,  S,  108. 284. 
AdaaM  t.  Bnniiui,  341. 
AduM  «.  Fftapatiiek.  11. 
Maua  •■  Coal  Co.,  M. 
AikHWfL  Wiaeoaria.  948. 8S7. 881. 274, 
202. 

Alabama  O.  S.  R.  Co.v.Thompaon,  204. 
AladM  Treadwdl  Gold  Blin.  Co.  t. 

WMaD.  161. 
Alteo  t.  Jaqvitb.  199. 
Alotander  M.  Lawrenea,  Tha,  47. 
Alexander  ».  Carolina  MBk,  lOS. 
Alfaon  «.  Bush,  122. 
Allen  V.  Boston  A  M.  R.  Co..  148. 
Allen  t.  Compreaa  Co.,  28. 
ABm  t.  Hood,  3A,  37. 
AOmi  «.  Ooodwin.  161 
AUceyer  9.  liowirfaHai  4. 
Allia-Chalmers  Co.  «.  Iron  Molders' 

Union,  220,  221,  222,  261,  262,  277, 

279,  318,  325. 
Althorfe.  Wolfe.  202. 
Amrieaa  Car  ic  Foundry  Co.  t.  Ar- 

MMitnuit.  104. 106, 128. 
Amrfeaa  FM.  of  Labor  e.  Bn^  StoTO 

4  Range  Co.,  282. 
American  Sted  &  Wire  Co.  «.  Wire 

Drawers'  Union,  221,  308,  313,  316. 
Anderson  v.  Drop  Forsinc  Co.,  324. 
Anderson  «.  Michigan  C.  R.  Co.,  180. 
Aadiom.  M*  partt,  80. 
Aadrieus'  Adm'r.  •.  Coal  Co.,  188. 
Ande  «.  Chicago  R.  Co..  86. 888. 
Angle  •.  Hanna,  31. 

Anoka  Lumber  Co.  a.  IkMllgr  4  Casu- 
alty Co.,  182. 
Anstee  t.  Ober,  27. 
AatioA  Coal  Co.  t.  Rookagr.  184. 


A.  R.  Bamea  ft  Co.  9.  Berry  (2  eases), 

237.  238.  268,  275,  276,  320. 
A.  R.  Baraea  ft  Co.  t.  TypograpMeal 

Unioii,  221,  222,  378,  380,  811.  818, 

321,  329,  330. 
Armistead  «.  Chatters,  40. 
Aims  f.  Ayer,  89, 93. 
Armstrong  «.  State,  79. 
Arnold  «.  Yanders,  123. 
Arthur  *.  Oakea,  13, 213, 216. 253, 267. 

258,  250,  268,  368.  872,  8««,  387. 

307,  319,  32C. 
Ash  e.  Guie,  223. 
Aaher  «.  Tomlinson,  16. 
Atchison,  T.  ft  8.  F.  R.  Co.  t.  Bn>wn,84. 
Atchison,  T.  ft  8.  F.  R.  Co.  t.  Oee,  3^, 

321. 

Atdibon,  T.  ft  8.  F.  R.  Co. «.  FmiM, 

135. 

Atldn  «.  Kansas,  7, 8, 50, 78. 

Atkins  V.  VlalAar  Co.,  8, 817. 330.  SN, 

317. 

Atlduaon  t.  Woodmansee,  61. 

Atlanta  t.  Stein,  341. 250. 

Atlaatie  Coaat  line  R.  Co.  t.  BsHlagr. 

147,  174. 

Atlantic  Coast  Line  R.  Co.  v.  Stete,  92. 
Attleboro  WUg.  Co.  t.  iBMnaea  Co^ 

183. 

Attorney-General  v.  Ice  Co.,  308. 
Attoyao  River  Lumber  Co.  v.  Payne,  60. 
Au  t.  New  York,  L.  E.  ft  W.R.COh  168. 
Aubry,  In  re,  114. 
Aultman  ft  Taylor  Co.  t.  Smith,  66. 
Avent-Beattyville  Coal  Co.  f.  CoM* 

monwealth,  65. 
Babcock  v.  Appleton  Mfg.  Co.,  33. 
Babooek,  etc.,  Co.  f .  Moore,  9. 


847 


348 


LIST  OF  CASES  aTSD 


Bmoo  t.  Sewinc  MmdUmOOnM. 
Bailey  t.  Bates.  3. 
Bailey  •.  Alabama,  18,  21. 
Bailey  t.  Master  Plumben.  227,  264. 
Bailey  •.  State,  18. 

Baker  ».  Insuranea  Co.  (2  mmd,  30, 

298. 294. 
Baker  •.  Portland.  11  A. 
Baldwin  «.  Association,  317. 
Baldwin  i.  Marquese.  30. 
Baltimore  A  O.  R.  Co.  •.  Bauch,  IM, 

IK,  157. 
Baltfanore  A  O.  R.  Co.    Bay,  148. 
Baltteore  A  P.  R.  Co.  i.  Joaos,  189. 
Baltimore  A  P.  R.  Co.  t.  Mackey,  134. 
Baltimore,  ate.,  Co.  t.  Stankard,  147. 
Barbour  t.  Albany  Lodse,  219. 
Baraas  A  Co.  v.  Berry  (2  cases),  237, 

288.  288.  275,  276,  320. 
Bmaa  A  Co.  f .  CUeifo  Typognvbieal 

Vwloa.  2n.  S»,  JW,  380,  811,  812. 

321,  320,  880. 
Bmom  t.  Plaeide,  29. 
Bur  t.  ■■■■  IMatOMMl,  888^  800, 

307. 

Barstow  •.  (Md  Colony  R.  Cu.»  Ut. 

BortiioloBsw  t.  JaekaoB,  1. 

Bwf.  CUeaso  A  N.  W.  B.  Co.,  888. 

*.  Deenn*  m,  64. 
Bflodi  t.  MuUin,  10,  12. 
Beck  r.   Railway   Teamsters'  Prot. 

Union,  277,  878.  888^  388,  388.  309. 

316. 

BaMa.MiiMr.84. 

BaM  V.  Jbtmir,  90. 

Berea  Stone  Co.  i>  Kraft,  188l 

Beniard  «.  LAH>ins>  81. 

Berry  «.  Donovan,  216,  288^  MO,  M4. 

862,  266.  297,  303,  322. 
Barry  •.  Walaoe,  3. 
BsaaHls  t.  Ca^.  813. 888. 880. 
BaMltot.  Mafia,  114. 
Bessette.  /«  rs,  313,  338. 
Birlant  t.  Cleckley,  47. 
Bixby  V.  Dnnlap,  35. 
Blanehard  •.  Distiiet  Ce«B«i.  888, 804. 


BodeU  «.  BraaO  Block  Coal  Co.,  129. 
Bodwell  f .  Manufaetuiiag  Co.,  173. 
Bohn  Mfg.  Co.  e.  HelHa.  87,  387,  884. 

285. 

Bonaud  *.  Genesi,  312. 

BooJi  fl.  BurassB,  361, 330. 

Booth*.  Faopie,  8. 

Boston  Glass  Co.  *.  Binney,  39. 

Boston  A  A.  R.  Co.  v.  Mercantile  Trust 

A  Deposit  Co.,  182. 
BoutweU  V.  Marr.  214.  316,  229.  236, 

246,  274,  286. 
Bovard  t.  Ford.  46. 
Boyd*.  State,  814. 

Boyer  *.  Weatom  Uirioa  TiL  Co.,  17, 

234,  293. 
Brace  Bros.  «.  Evans,  282,  286. 
Braceville  Coal  Co.  t.  People.  63. 
Bradley  «.  New  York  C.  R.  Co.,  177. 
Bradley  *.  State,  326. 
Braman  *.  Foas,  817. 
Brannan  •.  Hod.  204. 
Branson  v.  Industrial  Workers  of  the 

Worid.  230,  333.  338.  383.  887,  303. 

301,  304. 

Braswell  •.  Cotton  Oil  Mill  Co.,  100. 
Biechaon  *.  Lumber  Co.,  97. 
BnsdsB  *.  Aaakfort,  ate.,laa.Co.,  181. 
Brennan  «.  Hattan.  310.  898,  386.  88^ 

267, 297,  304. 
Biitton  «.  Turner,  12,  16. 
Brookfidd  •.  Drury  College,  10. 
B rower  •.  Northern  P.  R.  Co.,  199. 
BrowB  *.  Jaoofaa'  Fhannaey  Co.,  880. 
Bmwb  *.  Stoerfcd.  219,  230, 336. 
Brunnett  •.  Clark,  81. 
Bryant «.  Skillman  Hardware  Co.,  102. 
Buckingham  *.  Canal  Co.,  9. 
Bucks  Store  A  Range  Co.  *.  Ameiieaa 

Fed.  of  Labor  (8  «MSi).  887.  888, 

888.313. 

Boflalo  Pofis  Co.  *.  M atMl  tewwHy 

Co.,  373. 
Buela  •.  Newman,  249. 
Burdett  t.  Commonwealth,  324. 
Burke  *.  Fay,  339, 340, 380. 801. 


LIST  OF  CASES  CITED 


349 


BoHMtte  ff.  MamUM  Coal  Co..  237. 

an. 

BOM    Mariand  Mfg.  Co.,  W. 
Burt  t.  Lathrop,  219. 
Burtis  «.  Thompoon,  25. 
Butler  t.  Townaend,  127. 
BitttaiMdt.Adri«r.SS. 

CalUna  t.  Mining  Co.,  83. 

Callan  •.  Wilaon,  264. 

Callopy  t.  Atwood,  97. 

Camp  «.  Baldwin-Mdville  Co.,  27. 

Campbell  «.  Cooper,  38,  39. 

Campbell  v.  Johnson,  281, 288, 397. 

Capioii  ff.  Strout,  10. 

C»nr  ff.  Rutharford,  71, 218, 215, 229, 

240,  266,  301. 304. 
Canug  «.  Carr,  9. 

Carpenter  (.iChieagD  ft  E.  LB.  Co.,  182. 

Carr  «.  Coal  Co.,  31. 

Carr  v.  District  Court,  311. 

CarroU  v.  East  TenaeMee,  Va.  *  Ga. 

R.  Co..  136. 
Caraon  ».  Calhoun,  48, 81. 
Carson  «.  Ury,  248. 
Carter  «.  ^tna  Life  Ina.  Co.,  180. 
Carter  v.  Oiter,  300. 
Carta's  Case,  324. 

Caaey  t.  Typographteal  Unkui,  217. 
286,280.809. 

Caspar  «.  Lewin,  97. 
Caven  v.  Coleman,  114. 
Chamberiain  «.  Stove  Worka,  10. 
Champion  t.  Hannahan,  281. 
Chapman  r.  Berry,  56. 
ChewUeff.SUte.324. 
Cheodeal  Woriu  ff.  Pendar,  11. 
Cheaapeako  ft  O.  R.  Co.  f.  DisoB,  208, 
204. 

Chesapeake  &  O.  R.  Co.  fl.  Bumuf'a 

Adm'r,  02,  129. 
Chicago  ff.  Hulbert,  119. 
Chicago  ft  A.  R.  Co.  ff.  Johaaon,  162. 
CIAmwo  ft  A.  R.  Co.  f .  Myvn.  162. 
Chicago,  B.  ft  Q.  R.  Co.  •.  MtMtn,  9, 

148. 


Chicago,  B.  ft  Q.  B.  Co.  t .  Miller,  147. 
Chicago,  B.  ft  Q.  R.  Co.  •.  Wolfa,  188. 

Chicago-Coulterville  Coal  Co.  a.  Udd- 

ity  &  Casualty  Co.,  183. 
Chicago  Federation  of  Musieiana  t. 

Musicians'  Union,  230,  327. 
Chicago,  M.  ft  St.  P.  R.  Co.  ffi.  Rosa, 

166, 166, 168, 166. 
Chicago,  M.  ft  St.  P.  R.  Co.  •.  Selaa, 

147. 

Chicago,  R.  I.  ft  P.  Co.  v.  State,  91. 
Chicago,  R.  I.  ft  P.  R.  Co.  ff.  Zenoeln^ 

196. 

Chicago  TjrpoUMto  ff.  FkadkUn  Uaioa, 

329. 

Chicago,  W.  ft  V.  Coal  Co.  ff.  Peivla.  80. 
Chicago,  ete.,  R.  Co.  ff.  OfldeiJaar^ 

324. 

Child  «.  Boyd,  etc.,  Mfg.  Co.,  29. 
Chinese  Exclusion  Case,  120. 
Chipley  e.  Atkinson,  35. 
ChocUw.  O.  ft  G.  R.  Co.  ff.  MeDada, 
127. 

Chreatman  t.  Russdl,  40. 
Christenaen  «.  People,  244. 
Cigar  Makers'  I.  U.  t.  Goldberg,  240. 
Cigar  Makers'  Union  «.  Conhaim,  247. 
Cincinnati,  N.  O.  ft  T.  P.  R.  Co.  a. 

HiU'a  Adm'r,  162. 
City  of  Alma  ff.  Lodir,  807. 
City  of  St.  Louia  ff .  GkHMT,  888, 888. 
ClaA  ff.  Fensky,  48. 
Clark  V.  Gilbert,  31. 
Clark  «.  Smith,  47. 
Clark  t.  State,  49. 
Clark's  Case.  13. 

CMand  *.  Andenon.  218, 222. 363. 
Cleraland  *.  Conatraetira  Co.,  79. 
aeveland,  C.  ft  C.  R.  Co.  •.Koaiy,  108. 
aeveland,  C.  C.  ft  St.  L.  B.  Oo.  «. 

Jenkins,  33,  34. 
Clothing  Co.  v.  Watson,  288, 809. 
Qune  ff.  United  SUtea,  268. 
Clyatt  ff.  United  States,  19. 
Coal  Co.  ff.  CostaUo.  48. 
CoalCo.ff.Laab,lia 


860 


LIST  OF  CASES  CFTSD 


Coe«.  R.  Co.,  64. 

CoBur  d'Alene  Conaol.  Mining  Co. 
Miners'  UidoB,  817.  iSB,  806,  807. 
308.300. 

Coffee  •.  New  York,  etc..  R.  Co.,  170. 
Coffcyville  Biiek  *  Tito  Co.  t.  Ftnqr. 
884. 

ColUi  V.  FMple.  248. 

Collins  •.  Haselton,  24. 

Collins  «.  Iron  Co.,  3. 

Collins  Ice  Cream  Co.    Ste|>hians,  70. 

Columbia  Paper  Stook  Co.  •.  Hdelity 

Co..  180, 188. 
Combea    Bellerilto  Btooe  Co.,  143. 
Comerford  «.  Street  Ry.  Co.,  16. 
Commonwealth  e.  Beatty,  102. 
Commonwealth  v.  Butler,  45. 
Commonwealth  t.  Clark,  234. 
Commonwealth  «.  Dunn,  62. 
Commonwealth  •.  Hamilton  Blfg.  Ca, 

101, 108. 

Commonwealth  t.  Hillside  Coal  Co.,  70. 
Commonwealth  •.  Hunt,  71,  267. 
Commonwealth  v.  Perry,  50. 
Conunonweaith  ».  St.  Germans,  2. 
Commonwealth  «.  Shaleen,  112. 
Conkay  t.  Russell,  269, 828. 
CoBBatt  w.  Hattm,  807, 880, 881. 
Coaacdly  ».  Bolster,  180. 
Connolly  r.  Pipe  Co.,  263. 
Consol.  Coal  Co.  v.  Lundak,  144. 
Consol.  Coal  Co. «.  Seniger,  111,  134. 
Consol.  Coal  Co. «.  Wombacher,  162. 
Conaol.  K.  C.  Smeltinc  *  Rafining  Co. 

9*  PatsnoB,  160. 
CoDsol.  Mii^  Co.  9.  Bateman,  141. 
Coomba  t.  New  Bedfud  Cordage  Co., 

138. 

Coopw  V.  Stronge  A  Wamw  Co.,  30. 
Co^  «.  Laka  Aom  *  If .  B.  B.  Co., 
Ul. 

CotfaBt.  Coal  Co.,  88. 
CoatigMi  9.  Mohawk  R.  Co.,  84. 
Cotet.  Murphy.  218. 
Cotton  Januiera,  ale.  a.  Tajrkr,  226, 
888,231. 


CounseU  •.  Hall,  173. 

County  Commissioners  t.  Aapan  Min. 

Co.,  206. 
Crall ».  Toledo  ft  O.  C.  R.  Co.,  88. 
Crawford  *.  Publishing  Co.,  88. 
Ci»wfanlt.Wiok,3a6. 
CreoeeBt  Horasahoe  Co.  t.  Eyaoa,  27. 
Crisp  «.  R.  Co.,  66. 
Crispin  •.  Babbitt,  166. 
Cfonemillar  «.  Milling  Co.,  10,  25. 
Crump  r.  Commonwealth,  282,  288. 
Crystal  Ice  Co.,  Sherlock,  1Mb 
CuUan  t.  Norton,  178. 
Cnmbariand  Ohm  Mfg.  Co..  t.  CHaat 

Bottle  BIow«%  81«»  868,  871,  879. 

316,  322. 

Cumberland  GUaa  Mfg.  Co.  a.  State, 

65,  66. 
Curley  t.  Hoff,  163. 
Curna  t.  Floning,  60. 
Curran  t.  Galen,  214,  216,  289,  843, 

252. 262. 368, 267. 371. 874, 387, 808, 

304. 

Curtis  e.  A.  Lehman  Co.,  37,  81. 
Cutter  «.  Gillette,  25. 

Daniel  t.  Swaar&i  38. 
Daiaam  •.  Kohlmi  n.  104. 
Davidson  «.  Flour  City  Worki^  9T. 
Davidson  v.  Jennings,  61. 
Davidson  ».  State,  118. 
Davis  «.  Gray,  325. 
Davis  «.  Maxwell,  12,  15. 
Davis    Mwcer  Lumber  Co..  139. 
Davis  «.  Moigaa,  80. 
Davia  t.  Now  BBgiaad  R.  Fob.  Co., 
294. 

Davis  V.  State,  234. 
Davis  Coal  Co.  •.  PoUand,  146. 
Dayh&rsh  t.  Haaa&al  *  St  J.  R.  Co.. 
167. 

Dayton  Coal  ft  Iron  Co.  t.  Barton.  66. 
Dafaa,  In  rs.  314.  221,  888.  858.  806. 

306,  321,  823,  331. 
Deer  Trail  Conaol.  Mtm.  Co.  9.  Caao- 
alty  Co.,  180. 


UOT  OF  CASES  CITED 


351 


Delaware,  etc.,  R.  Co.  t 

Union,  236,  237,  276. 
Ddk  ff.  R.  Co.,  130. 
Da  LwM  f .  MeDoweU.  38. 
De  Ifiideo  t.  Oaig.  MS.  M>  *M.  a07, 

317. 

Dempwy  w.  Cluunben,  308. 
Deni  t.  P.  R.  Co.,  122. 
Denver  4  R.  O.  R.  Co.  e.  Gannon, 

93,  97,  146. 
DanTW  ft  R.  O.  B.  Co.  w.  Norgate,  93. 

M,  141. 

Denver  ft  R.  O.  B.  Co.  t.  Raitar,  117. 
Dewrant  t.  CeciUoa  Coal  R.  Co.,  90. 
Detroit,  etc.,  R.  Co. ».  State,  91. 
Diamond  State  Iron  Co.  *.  BelL,  32. 
Dickey  t.  linacott,  31. 
Dickey,  Ex  parte,  210. 
DiogwaB  t.  AModatlon.  231. 
Diatriot  of  Cotumfaia  t.  Brooke,  94. 
Dixon  «.  Poe,  87. 

Dobbin  r.  Richmond  ft  D.  R.  Co.,  162 
Dobyna  ».  Yaioo  A  M.  V.  R.  Co.,  162 
DoAto  ••  Favor,  3. 
Donald  •.Chioaco,B.  ft  Q.R.Co.,148. 
DooUtOa,  In  n,  836,  826. 
Doranua  •.  HenneMgr,  340i  801. 
Doraey  •.  State,  18. 
Douglaa  ».  People,  113. 
Drajrton,  Ex  parte,  19. 
Duboia  *.  Delaware  ft  H.OBaalOo.»47 
Dudlagr  w.  Huiat,  308. 
Dogaa  •.  Aodanon,  IS. 
DinaaB«.BaiBW.l«. 
Dunn  t.  Moore,  IS. 
Duqueane  Diatribotias  Co,  «.  CbMB- 

baum,  204. 
Durkin  •.  Fin^rtnii  Goal  Co^  110>  11^> 

134, 199. 

■aat  Tten..  Ya.  ft  Cta.  B.  Co.  a.  Dnf- 

field,  144. 
Eehola  •.  Fleming,  IT. 
Eden  •■  People,  79. 
Bdwaida  t.  Seaboard  ft  R.  R.  Co.,  11 
a'  Adm'r.  a.  Ubm  179. 


Mob  a.  Caajtoa,  3S. 
Elnlieh  a.  WiUaadd.  338,  334. 
SioaBantraut «.  RoUnaon.  224. 
EileBbeeker  •.  Plymouth  Co.,  338. 
Elder  a.  Whiteaidea,  262. 
EUorado  Coal  ft  Coke  Co.  a.  Swan.  99. 
B  Paao  ft  N.  E.  R.  Co.  a.  Ckrttama, 
EnMiaoa  a.  Hiua.  826. 
Emmena  a.  EdertOB,  9. 
Employing  Printers'  Club  a.  Doetoc 

Blooaer  Co..  298,  302. 
Erdmana.  Ilitefaall.  339, 387. 398,  SIS. 

EriokaoB  a.  Amatkaa  Stad  ft  ¥^  Co, 

132. 

ErU  e.  Fraduea  Ezchao■^  87,  38S. 

Evana  r.  R.  Co.,  11. 
Evanavilie  Hoop  4  Stave  Co.  a.  Baflegr. 


93. 

EvarU  ».  St.  Paul.  M.  ft.  M.  R.  Co., 

Evatett-Waddy  Co.  a.  Typognvbusal 

UnfaNt.  273,  378,  379,  807. 
Ewiag  a.  Janaw,  SO. 


Falconio  «.  Laraen,  64. 
Faien  a.  Sellera,  162. 

a.  Kearney,  179. 
L.  ft  T.  Co.  a.  Nwthem  P.  R. 

Co.,  218,  81S. 
FarweU  «.  Boston  ft  W.  B.  Coip.,  308. 
Fawcett «.  Caah,  32. 
''dton  ».  Girardy,  178. 
j<erira  t.  Sayrea,  32. 
Fewiaga  ».  Mendenhall,  269. 
FIdaUty  ft  Caaualty  Co.  a.  Loaa  Oak 

Cotton  OB  ft  Qin  Co..  188. 
Fischer  v.  State.  300. 
Fisher  ».  Walsh,  33,  270. 
Fitsgerald  ».  Paper  Co.,  73. 
Flaccua  a.  Smith,  216,  278,  298. 
Flaherty  a.  LoaffhoMMB'i 

217.  338.  338. 
riulmr  a.  R.  Co.,  43. 
Flukes,  In  re,  87. 

Fo0trty  a.  St.  Louia  Tranrfer  Co.,  m 


352 


LIST  OF  CA8BS  CITSD 


Vohy  «.  Pioneer  Mining  Co.,  133. 

Folsom  t.  Lewis.  244,  266,  317. 

Ford  •.  SUte.  324. 

Forayth  a.  MoKinnagr,  88. 

Fortt.  Wliippie,aiM. 

Ft.  Wayne,  eto.,  Tntetioa  Co.  t.  Bonde- 

buah.  141. 
Fowler  v.  Armour,  26. 
Frank  Unnewehr  Co.  v.  Insurance  Co., 

184. 

Frank  a.  Heiold.  38. 210, 260, 271, 273, 
310. 

Vnak  a.  Maternity,  etc.,  Co.,  11. 
Frank  a.  Newport  Mining  Co.,  147. 
Franklin  v.  Lumber  Co.,  27. 
Franklin  e.  United  R.  A  E.  Co.,  185. 
Franklin  Union  v.  People,  217. 218, 329. 
Frary  r.  Rubber  Co..  28. 
Vnmft.  MeConway  4  Toriey  Co.,  121. 
TnaoMa  a.  Paper  Mill  Co..  128. 
Vront  a.  People,  5,  70. 
F.  B.  Patdi  Mfg.  Co.  a.  CaiwIeH.  220, 
222,  304. 

F.  R.  Patch  Mfg.  Co.  a.  Intenational 

Ass'n.,  301,  304. 
Ftye  V.  Gas  4  Eaecttio  Co.,  181. 
Fuehs  a.  Koemer,  26. 
FUUer  a.  Little.  26. 

ndton  a.  Wilmington  Star  Miniag  Co., 
134. 

ftmnaaa.  AppiecBte.  42. 

Gagnon  a.  Machine  Co.,  141. 
Gallagher  a.  Manufacturing  Co.,  61. 
Galveston  Oil  Co.  ».  Thompson,  176. 
Garretaen  v.  Duenckel.  103. 
Gatzow  r.  Buening.  214,  227,  229,  252, 
304,  329. 

General  Tire  Repair  Co.  a.  Price,  41. 
Geo.  Jonaa  Glass  Co.  a.  Glass  Bottle 

Blowers  (2  eases).  321,  378,  281. 

287,  816,  319,  322. 
George  ».  Clark,  141. 
George  v.  Railway  Co.,  141. 
Gibson  v.  Fidelity  A  Casualty  Co.,  86. 
GiU  a.  United  SUtes.  74. 


GiUespie  a.  People,  2S4. 
Gillis  a.  Space,  2. 

Glens  Falls  Poitluid  CsBMt  Go.  «. 

TnveUn'  laa.  Cou.  183. 
Olo^aw  a.  Raidwan  Mfg.  Co..  07. 
Gmaehle  a.  Rosenberg,  170. 
Godcharles  *.  Wigeman,  66,  76. 
Ooddard  a.  Foster,  1. 
Goldberg  a.  Stablemen's  Union,  216^ 

260,  271,  315,  316. 
Goldaaa.CodCo.,  110. 
Ooldenstein  a.  Baltimore  4  O.  R.  Co., 

149. 

Goldfield  Consol.  Mines  Co.  a.  Gold- 
field  Miners'  Union,  261.  389.  387, 
272,  273,  281,  319. 

Goldstein  v.  White,  IS. 

Gompera  a.  Bucks  Stove  4  Range  Co. 
(8  cnes),  809,  811,  813,  318,  323, 
826,  327,  328,  330. 

Gorman  a.  McArdle,  94. 

Gormley  v.  Clark,  317. 

Gottleib  V.  R.  Co.,  134. 

Gower  v.  Andrew,  3. 

Gray  a.  Building  Trades'  Council.  260, 
267, 288, 280, 290, 800, 818. 820. 

Green  a.  Brainerd  4  N.  M.  B.  Co..  178. 

Green  a.  Fdton,  227. 

Green  v.  Watson,  56. 

Grenada  Lumber  Co.  a.  Mississippi, 
254,  318. 

Grice,  In  re,  218. 

Griggs  a.  Swift.  3L 

Gulf,  etc..  R.  Co.  a.  Ellis.  81. 61. 

Gulf,  C.  4  S.  F.  R.  Co.  a.  Sehwabba,  187. 

Guthrie  a.  MetiOl.  78. 

Rackman  a.  Flory,  47. 
Hale  V.  SUte,  326. 
Haleya.Caa^  173. 

Hall  a.  EoienoB-Stevras  Mfg.  Co.,  188. 
Hall  Lace  Co.  a.  Javes,  314. 
Hamblin  v.  Dinneford,  14. 
Hamilton  a.  Love,  25,  26,  29. 
Hammerstein  «.  Parsons,  219. 
Hammond  Packing  Co.  a.  State,  67, 68. 


LIST  OF  CASES  CITED 


353 


Hancbett  •.  CUatoriA.  TS. 
Huoock    Yaden,  62. 
Haney    Caldwdl.  10, 11. 
HarfainD  t .  Iron  Co.,  M,  87. 
Hndy  •>  Mliiiiwuinlfa  *  M.  L.  B.  Co., 
167. 

Han  t.  Melntin,  liW. 
HannoD  *.  SaliDM  FfeBa  liig>  Cot  *• 

Hannon  «.  Stats,  118. 
Btania  t.  Dttrcit  T]rpogn«Unl  Union. 

8S1. 

Haitiaon  •.  Sugar  Refining  Oo^  !>• 
Hamd  t.  Latham.  128. 
Hattw-Hen.  1. 
Haskins  v.  Royiter,  36,  S8. 
Haaselman  Printing  Co.    Fry,  1, 14. 
Hatton  «.  Mountford,  28. 
HawUna  «.  Gilbert,  16. 
Haya  t.  Merder.  61. 
Haard  a.  Cnim,  46. 
Henderaon  w.  Koenig,  10. 
Henderw>n  Bridge  Co.  t.  MoGiath,  47. 
Hendrix    State,  40. 
Hennington  v.  State,  80. 
HenrietU  Cotd  Co. «.  Martin.  109,  111 
Battennan  «.  Powera,  248. 
Hawott*.  Swift,  204. 
Hewitt*.  Prime,  42. 
Hey  «.  Waaon,  280. 
Heywood  ».  Tillf  on.  71. 
Hlggina,  In  re,  219, 263, 326. 
Hightower  «.  State,  39. 
Hildebrand  ».  Art  Co..  15, 16. 
Hill  *.  American  Surety  Co.,  63. 
Hin  *.  Movey,  902. 
Hill  t.  Robeson,  31. 

Hillenbrand  ».  Building  Tradaa'  Coun- 
cil. 2fi7. 

Hillsboro  Nat.  Bank  v.  Hyde,  73. 
Hillyard  t.  Crabtree,  199. 
Hilton  «.  Eckenley,  14,  236. 
Binds  •.  Omaeksr,  100. 
mtchman  Coal  Co.  *.  MitohaO.  276. 
296,  321. 

Hoadly  ».  International  Paper  COm  81. 
Holden  *.  City  of  Alton,  250. 

2a 


HoldsBS.  Bafdy,  7. 8, 77. 00.  ISA. 
Holdsr  f .  Canmm  Mtf.  Co..  SS. 
Hollenbeck  t.  Ristine,  37. 
HoUman,  £x  parte,  10. 
Holahouaer  t.  Dsbvw  Qm  *  &  Co., 
270. 

Home  Mizturs  Guano  Co.  t.  InnnBSt 

Co.,  183. 
Hool  *.  DoRoh.  88, 80, 40. 
Hopkins  «.  Ozley  SUve  Ca,  386,  MS, 

287,  310,  322. 
Hopkins  e.  United  States,  218. 
Horn  •.  Association,  10. 
Hotchkiss  t.  Godkin,  9. 
Hou^  a.  Texas  ft  P.  R.  Co.,  141, 168. 
House  am  No.  208,  In  n,  61. 
Houston  &  T.  C.  R.  Co.  •.  Burnet,  152. 
Hoveland  t.  National  Blower  Works, 
127. 

Hoven  «.  Employers'  Liability  Assur- 
ance Corp.,  182.  183. 
Howard  *.  Illinois  C.  R.  Co.,  106. 
Howd  •.  Miarissippi  C.  R.  Co..  168. 
Hudson,  The,  11. 
Hulse  V.  Bonsack  Maeh.  Co.,  74. 
Hundley  v.  Louisville  ft  N.  B.  Co.,  88, 

34,  294. 
Hunt  •.  Crane,  26. 
Hunt  V.  Otis  Co.,  33. 
Huriey  •.  Tudnr,  61. 
Huskie  «.  Griffin,  85,  278. 
Hutson  «.  Missouri  P.  R.  Ca.  166. 
Huttig  Sash  ft  Door  Co.  *.  FtosBa.  S88, 

300,  311,  328. 
Hyde  f .  Woods.  219. 
Hyvonen  t.  Hector  Iron  Co.,  112. 

Ideal  Mfg.  Co.  v.  Ludwig,  277, 327. 
Illinois  C.  R.  Co.  ».  Joaey's  Adm'r.. 

166. 

Inbusch  «.  Farwdl,  220. 
Indiana,  B.  ft  W.  R.  Co.  ».  DaUey,  136. 
IntematioDal,  etc.,  R.  Co.  t.  McDon- 
ald, 208. 

IntemaUonal  Togrtbook  Co.  t.  Wsia- 
singer,  68. 


364 


LIST  07  GA81S  CITID 


Intenuto  CoauMtM  OoaaWMi  f. 

Briaaaoa,  833. 
Iron  ft  Steel  Co.  t.  Nichda,  13, 14. 
Iran  MoMm'  Union  f .  AlUa-ChaloMn 

Co..  ai9.  331,  388.  37S,  376.  377, 

27S.  280,  290,  318. 822. 
Irvine  t .  Flint  ft  P.  M.  R.  Co.,  152. 
Ihum»  •.  McAndrew,  16. 
Ivee  w.  South  Buffalo  R.  Co.  (3  omm), 

106^197. 

JnekioB  V.  Sdiool  DiiMet,  36. 

Jackson  «.  State  (2  eaaea),  40,  116. 

Jacobs  V.  Cohen,  237,  240, 243, 808. 

Jacobs,  In  re,  6. 

James  «.  Allen  Co.,  26. 

Jarvia  •.  Peck,  13. 

Jeffenonville  R.  Co.  t.  Bofet%  303. 

JeoUns  t.  Fowler,  71. 

Jennings  •.  Camp,  12. 

Jenaen  «.  Cooks'  ft  Waiters'  Union,  278. 

Jersey  City  Printing  Co.  v.  Cassidy,  6, 

229, 274, 276, 287, 308, 316, 818,  319. 
Jetton-DaUa  liomlMr  Co.  Mather, 

227. 

j0weB«.BoltftNatCa,  144. 

J.  F.  Parkinson  Co.  ».  Buildinc  Trades 
Council,  233,  274,  284,  287,  291. 

John  C.  Lewis  Co.  «.  Scott,  26. 

Johnson  •.  Charicston  ft  S.  R.  Co.,  144. 

Johnson  f .  QoodyMT  Ifiaiaf  Co.,  S8, 
61,  67. 

Johnson  «.  PhOadeiphia  R.  Co.,  147. 
Johnson  «.  Southern  P.  R.  Co.,  96, 186. 
Johnson,  Lytic  ft  Co.  «.  (S^Mrtan  MiOa, 

66. 

Johnston  e.  Barrills,  64. 

Joliet  Mfg.  Co.  «.  Dice,  74. 

Jonas  Glass  Co.  t.  Glass  Bottle  Bknr^ 
ets  (8  eases),  331. 378. 381. 387. 115. 
319,  322. 

Jones    Caramd  Co.,  129. 

Jones  «.  E.  Van  Winkle  Gia  4  Ma- 
chine Works,  273,  277. 

Jones  e.  Hay,  1. 

Jmms  t.  Jiooegr,  1. 


Jones  t.  Judd,  31. 

Jones  t.  Leslie,  6, 86. 

J<mas  t.  Maber,  399, 804. 

Jooaa  f.  Baaboaid  Ak  Una  B.  Co..  308. 

JoBsa  •.  TMidtjr  PteM  Ymtn,  U. 

Jordahl  t.  Hayda,  288,  M7. 

Jordan  •.  State,  66. 

Josma  ».  Westsw  Btssi  Car  *  Wmnirt 

Co.,  270. 

Joyce  V.  Ot.  Northern  R.  Co.,  294,  296. 
Juniata  fiimeatons  Co.  t.  Fk^ay,  121. 
Iniiitar  Coal  Wm.  Oo.  «.  Marear.  tt, 
138. 

Kansas  Cttjr.  M.4tB.R.  Co.,f.Bartoa, 

170. 

Kansas  P.  R.  Co.  •.  Peavey,  146, 146. 
Kansas  P.  R.  Co. «.  Robeison.  9. 
Xarisa  Furniture  Co.  t.  WoocKrariuta* 
Union,  330,  831.  878.  877,  879,  SIS, 

322. 

Kealey  «.  FlMlkw,  888, 886, 887, 888, 

261. 

Keane  •.  Boycott,  38. 
Ksady  t.  Long,  37. 
Koelev.  FiB0|ilab78. 

Keenaa  t.  Nov  Toric,  L.  K.  4  W.  B. 

Co.,  161. 
Keith  «.  Kdlermann,  13. 
Kdlogg  t.  Insurance  Co.,  10. 
Kelly  ».  Wheel  Co.,  10. 
Kellyville  Coal  Co.  t.  Hanier,  66, 67. 
KeUyriUe  Coal  Co.  t.  Petraytia,  133. 
KaUyviOo  Coal  Co.  •.  String  139. 
Kentucky  Coal  Min.  Co.  *.  Matting, 

69. 

Kentucky  C.  R.  Co.  t.  Gastineau,  177. 
KHey  *.  Chicago,  etc.,  R.  Co.,  15S. 
Kimmer  t.  Weber,  161. 
Kbg  V.  Waalsra  Unioa  Tel.  Co.,  368. 
King,  As  yafis,  99. 

Kinnan  t.  Fidelity  ft  Casualty  Co.,  181. 

Kirby-Dennis  Co.,  /n  M. 

Kirk  t.  Hartman,  10. 

Kirkham  «.  Wheeler-Oigood  Co.,  104. 

KhMms.  Printing  Ca,  348, 344. 


UST  OF  CASI8  CmD 


866 


XkMt.  Lumber  Co.,  03, 128. 
BdMay  t.  Pntt.  03, 96, 129, 141. 
KMMnrOto  Iraa  Co.  f .  Harbison,  00. 
XMdM  t.  Bwa.  M8»  372, 37& 
Kotf«rt.Bay.». 
Kootenai  Cowrtjr  n  Bop*  Loabw  Co., 
aoo. 

KopUti  fl.  Powell,  29, 80. 
KiMM  ff.  MoTftn,  128. 

Lneagr*.  GctoMa,  SI. 

Lake  8hen  *  M.  8.  B.  Co.  *.  Bddwin. 

117. 

Ldw  flMN  4k  M.  8.  B.  Co. «.  QpMiier, 
144. 

Leabwt  t.  Eartahome,  26. 
TiantiMtw  e.  Hambuifir,  S7. 
Landgraf  t.  Kuh.  129. 

Lang  •.  SimmoiM,  46- 

Langan  t.  Tyler,  1,  177. 

j^nghmm  «.  State,  39. 

Langmade  •.  Olean  Brewing  Co..  288. 

Lanbee  f.  New  York,  ale.,  B.  Coh  91. 

Lamn  •.  Ha^in,  174. 

Lalbamt.  BnwU,  18, 17. 

Lmrior  a.  ManM  *  8(».  948. 

Lawrenee  •.  OuBifer,  3. 

Lawrence  t.  Rutland  R.  Co.,  62.  07. 

L.  D.  Waieutt  &  Sona  Co.  e.  Brick- 

lagrefi,  214,  215,  229.  236,  320. 
Leaqr  •.  Boatm  Jk  A.  R.  Co.,  144. 
Leaa  e.  PHUMgrhranin  Co.,  147. 
Leatherbeny  v.  Odell,  26. 
Leathers  •.  Tobacco  Co.,  104. 
Leep  t.  St.  Louis,  etc.,  R.  Co.,  64, 87. 
Leea*.  United  States,  120. 
Lehigh  VaUey  Coal  Co. «.  Jonee,  161. 
Laoahaa  t.  Fittaton  Coal  Min.  Co.,  104. 
LemwBt.  Lake  ann,  ate.,  R.  Co.,  806. 
Lennon,  Ex  parU,  811. 
Lennon,  In  re,  306,  311,  814.  838. 
Levin  •.  Coegrove,  283,  MT. 
Lewiat.  Board,  241. 
Lewiav.  TUton,  224. 
Li««iCo.t.8oot(.30. 


Uadaay  t.  Montana  Fad.  of  Libw. 

267.  283.  288,  291.  309. 
Lippua  t.  Watch  Co.,  27. 
LittI*  liiMii  R.  Co.  a.  8lav«Mb  168. 
UM*  BoA  *  n.  Seen  S.  On.  l»i 

banka.  144. 
Litaenberg  t.  Tmat  Co.,  04. 
Lloyd  t.  Loring.  226. 
Lloyd  •.  R.  Co.,  76. 77. 
Loeal  Union  Taitta  Wcftaw  •.  Bt^ 

rett,  330. 

LoAnar  t.  Now  Totk.  4,  8,  8,  77, 

78. 

Loewe  t.  Cal.  Fad.  of  Labor,  288,  300, 
313. 

Loewe  t.  Lawl(»  (2  caaea),  214,  210, 
217.  256,  274,  287.  288,  293.  321. 

Lohae  TaXmt  Door  Co.  •.  Fudle.  361, 
257, 387, 388, 818, 831. 

Loudon  Quarantee  Co.  t.  Hon.  80. 

Longahore  Printing  Co.  e.  BowaD,  898. 
f  ■fHiti  3-  B;-ewing  Co.,  38, 80. 
i    ord  r.  Goldberg,  9. 

Lore  «.  Manufacturing  Co^  104. 

Lodat.  Elfelt,  32. 

LoniaTiila  R.  Co.  t.  Hibbitt,  168. 

Loniavilla  *  N.  R.  Co.  f.  Baldwin,  118. 

LouiaviUe  ft  N.  R.  Co.  t.  Miller,  188. 

Louisville  Sc  N.  R.  Co. «.  Wooda,  161. 

LouiaviUe,  etc.,  R.  Co. «.  Offutt,  9. 

Low  t.  Rees  Printing  Co.,  76. 

Low  Moor  Iron  Co.  a.  Bianca'a  Adm'r., 
122. 

Lucas,  Bx  vartt,  114. 
Luekea.  CtotUng  Cuttan,  88, 318, 388. 
LuUo  t.  SouOiani  P.  B.  Co.,  188, 108, 
167. 

Luman  v.  Hitchena  Broa.  Coal  Co.,  70. 
Lumley  t.  Gye,  35,  38. 
Lumley  t.  Wagner,  13. 
lApher  •.  Atchiaon,  T.  ft  S.  F.  R.  Co^ 
117. 

Lvske  •.  HotchUaa,  2.  78. 76. 
Lynch  ■■.  Metropditan  E.  R.  Co.,  308. 
Lyon  V.  Ca'.'opy,  66. 
Lyon  fl.  PoSl&i'd.  27. 


886 


IJ8T  or  CA8I8  CITBD 


MoCaQ  f  Wri^t.  18. 

ilflCwtky*.  Guild.  43. 

MoCwiB  t.  BnhM.  M. 

Meaurg  t.  Kiniriand.  74. 

McCord  t.  Tbompwrn^tamM  Oo.. 

246,262. 
MeConniek,  In  rt,  825. 
MeCowo.  Ex  partt,  336. 
MoCcMkm  t.  Hair,  8. 
MeDwaaolt  t.  low*  Mi,  •ta.t  B.  Co., 

117. 

McDonald  •.  nUnoia  C.  R.  Co.,  84. 

McDonald  v.  State.  112. 

McGrath  s.  Merwin,  46. 

McGuire  «.  R.  Co.,  148. 

Molntoah  t.  Bute.  18. 

MeKaya.HaBd.181. 

McLean  •.  Blue  Point  O.  M.  Cc,  161. 

McLean  t.  Publiahinc  Co..  M. 

McLean  •.  State,  61. 

McLellan  «.  Young,  46. 

McMahon  •.  Rauhr,  224. 

McMillan  t.  Coal  &  Coke  Co..  110. 

MeMOlaBff.  Spider  Lake  S.  ft  L.  Co..  122. 

MoMiUaB  a.  Vaaderi^  12. 16. 

McMuUen  a.  DieUnaoi  Co..  94. 

McPhee's  Eatete,  In  re,  31. 

McVey  •.  Brendel,  247.  248. 

Mi  Miley  ».  Tierney,  37. 

Maekall  t.  Ratchford,  327. 

Maokeniie  v.  Minis,  28. 

Maviahan  t .  Wiicht.  10. 

Mahoney  t.  Smith,  200. 

Maina.  Field,  67. 

Malone  «.  Hathaway,  164. 

Mann  «.  Oriental  Print  Workl,  168. 

Manowaky  «.  Stephan,  61. 

MarUe  Co.  r.  Ripley,  13. 

March  «.  Bricklayera'  Union.  216,  229, 

240,  266,  2M,  287,  801. 
Marier  «.  R.  Co.,  202. 
Marino  e.  Lehmaier,  104. 
Marriner  e.  Roper  Co.,  65. 
Marshall «.  Norcroaa.  01. 
Marshall  ft  Bnioa  Co.  t,  NathviUe, 

841.250. 


Martdl  f.  Wyia^  814.  tll»  m  MS. 

286. 

Martia  a.  Aldrim,  T.  *  1.  f  .  I.  Oo^ 

178. 

Mtftia  «.  CMmm,  S.  L  *  P.  B.  Oo^ 

141. 

Martin  «.  Inauranea  Co.,  10. 11. 
Martia  ».  N.  F.  B.  AwaAtin«,  884. 

282. 

Mant.MiUer,80,81. 

Man  4  Haaa  Jean  Clothing  Co.  t. 

WataoB.  888. 800. 
Maryland  Steal  Co.  t.  MUMgp.  US. 
Maasie  •.  Ce«ua,  60. 
Master  Horaeahoanr  Jkmfn.  a.  QHi»> 

Uvan,217. 
Master  Stevedorea'  Aas'n  f .  Wahh,  SIS. 
Mather  t.  Rillaton,  126. 
Matharinaf.R.Co.,25. 
Matlock  f .  Williaaivilla,  ttc.  B.  Co., 

117. 

Matthews  v.  People,  208. 

Mattison  ».  R.  Co.,  204.   

Mayer  «.  JoumeymoB  StuuauilMln, 

210,  264,  266.  314. 
Maynaid  t.  Coraet  Co.,  10,  25. 
ModUn  MflUnc  Co.  w.  Boutwell,  208. 
Meehan  t.  Sirfan  Mfg.  Co..  168. 178. 
Merrill  •.  Western  Union  TaL  Co..  88. 
Mezelbaum  «.  Limberger,  27. 
Mexican  Amde  Soap  Co.  ».  Clark,  87. 
Meyera  «.  City  of  New  York,  46. 
Miller  t.  City  of  Dea  Moiaaa,  380. 
Millar  f.  Cuddy,  3. 
Miller  t.  Miaaooii  P.  R.  Co.,  168. 
MiUs  «.  United  Stataa  PrintiBg  Ca.  841* 

279,  283. 
Mining  Co.  v.  Cullins,  61. 
Minneapolis  ft  St.  L.  R.  Co.  t.  Herrick. 

146. 

MiBOt*.&uivdy,202. 
MiMouri,  K.  ft  T.  R.  Co.  a.  Wood.  144. 
Missouri  P.  R.  Co.  e.  Brinkmeier,  180. 
Missouri  P.  R.  Co.  t .  Ca8U^  08. 168. 
Miaaouii  P.  B.  Co.  t.  Hoar  Ifilla  Co.. 
81. 


LI8T  OF  CA8I8  CITID 


867 


IliMoufi  P.  B.  Cb.  «.  IfadMsr.  M.  171, 
IM. 

MttdMB  ff.  FMHirhmfo  Co..  145. 
Mofaa«  *  B.  R.  Co.  ff.  Holborn,  171. 
Ilobila.  J.  A  K.  C.  R.  Co.  t.  Hieka,  139. 
MobUe  *  M.  R.  Co.  t.  Smith,  103. 
lloUlo,  etc.,  R.  Co.  •.  a«iiton,  100. 
llooBsyw.  Conn.  Rivw  Lumber  Co.,  133. 
Moon  t.  Cantial  Foundry  Co.,  36. 
Moors  f .  Wnboah,  ate.,  R.  Co.,  ISO. 
Mooret ».  Bricklayers'  Union,  301. 
Moran  •.  Dickinaon,  81,  117. 
Moran  v.  Dunphy,  30. 
More  t.  Bennett,  216,  227. 
Moivui,  In  re,  77. 
Mmwu    CoocdoD,  61. 
Monte  e.Ntvfflo,  40. 
Morris  Coal  Co.  •.  Donley,  00. 
Morton  t.  Detroit,  etc.,  R.  Co.,  132. 
Moses  V.  Travelers'  Ina.  Co.,  181. 
Mosgrove  «.  Zimbleman  Coal  Co.,  128. 
Moss  «.  Decatur  Land,  etc.,  Co.,  10. 
Mt.  Vernon  Woodberry  Duek  Co.  t. 

Inaonuiee  Co.,  184. 
Mulhall  t.  FaUon.  123. 
Mullaly  t.  Austin,  20. 
Muller  «.  Oregon,  6,  101,  103. 
Mumford  •.  Chicago,  R.  I.  &  P.  R.  Co., 

140. 

Murphy  Hardware  Co.  t.  Southern  R. 

Ca,30B. 
Murrdi's  Caae.  80. 
Mutual  Loan  Co.  t .  MartaU,  M. 

My  Maryland  Lodge  •.  Adt.,  388,  381, 

283,  287,  288,  306. 
Hjmv  B.  FMwiBaB,  340. 

NaglebMith  t.  Mining  Co.,  65. 

Narmnof*  t.  deveUnd,  ete.,  JL  Co., 
08, 04, 141, 148. 

Nashville,  C.  A  St.  L.  R.  Co.  «.  Ala- 
bama, 80,  113. 

National  Firepioollac  Co.  •.  Hunting- 
ton, 61. 

National  Fireproofing  Co.  «.  Mason 
Builders,  886, 344, 362, 264. 


NatioMi  Ftotoothw  A«fa.  %  Om* 
ming,  218,  386,  348,  244,  367,  301, 
363,  264.  366.  276,  284.  306,800. 
817,  330. 

Naylor  •.  Iron  Works,  82. 

New  England  R.  Co.  «.  Conroy,  156. 

New  Pittsburg  Coal  A  Coke  Ca  •. 
Peterson,  ISO. 

Now  York  Ceotnl.  ote..  R.  Co.  t. 
WiUaffls,  88. 

New  York  City  •.  Miln.  d3. 

New  York,  C.  A  St.  L.  R.  Co.  v.  Schaef- 
fcr,  5,  33. 

New  York,  L.  E.  A  W.  R.  Co.  ».  BeU, 
162. 

Nnrooab  t,  Boatoo  PtotaeUw  Dipt, 

81. 

Newman,  Ex  parte,  80. 
Newton  v.  Pope,  190. 
Niagara  Fire  Ins.  Co.  v.  Cocatil,  300. 
Nickelson  v.  Stryker,  42. 
Nimmo  c.  Walker,  1. 
Nolan  r  Danks.  17. 
Notf  oik  *  W.  R.  Co.  t.  Booduiut.  117. 
Norfolk  4  W.  R.  Co.  Commonwealth, 
80. 

Northern  P.  R.  Co.  ».  Dixon,  154. 
Northern  P.  R.  Co.  v.  HamUy,  158. 
Northern  P.  R.  Co.  t.  Whaton,  43. 
Norton  •.  Brookline.  30. 
Noitoo  t.  CoweJl,  la 

Oakea  •.  Moore,  61. 

O'Brien  r.  Chicago  N.  W.  R.  Co.,  149. 

O'Brien  s.  Musical  M.  P.  U.,  219,  225, 

227,  228,  251. 
O'Brien  «.  People,  243, 267, 323, 324, 320. 
O'Cmmdl  t.  Lumber  Co.,  67. 
O'Conaor  •.  Armour  PaeUac  Co.,  188. 
O'Connor  •.  Briggs,  31. 
O'Connor  v.  Walter,  67. 
Old  Dominion  S.  S.  Co.  •.  McKenna, 

216,  301. 
Olmsted  •.  Bach,  26. 
O'Maley  «.  South  Boaton  Om  Li|^ 

Co.,  01, 08, 145. 


MICROCOPY  RESOLUTION  TBT  CHART 

(ANSI  and  ISO  TEST  CHABT  Ho.  2) 


J    APPLIED  IM/OE  Inc 


358 


LIST  OF  CASES  CITED 


O'Nefl  V.  Behanna,  273.  274, 301, 304. 
O'Reilly  «.  PenoaylTania  Co.,  148. 
Orimt  las.  Co.  I.  Daoi.  68. 
OriXMIM  •.  MociHD,  199. 
Otis  Steel  Co.  t.  Iron  M  old«a'  Uaiaii. 

274, 277.  278,  319, 321. 
Otto  •.  Journeymen  Tailors,  228,  230. 
Owens    Baltimore  A  O.  R.  Co.,  147. 
Owens  «.  Laurens  Cotton  Mills  Co.,  105. 
Owens  V.  State,  60. 

Odey  Sta^e  Co.  •.  Coopen'  Int.  Union, 
2S2, 287. 

Pain  f .  Samide,  223. 
Palmer  «.  Van  Santvoord,  M. 
Park  ».  Bushnell,  29. 
Parker  «.  Lumber  Co.,  97. 
Parker  V.  Piatt,  3. 

PhrUnaon  Co.  v.  Building  Tradit  Coun- 
cil, 233.  274.  284,  287,  291. 
Puiott,  In  re,  119. 

Pbtoh  Mfg.  Co. «.  Capeless,  220, 222, 304. 
Patch  Mfg.  Co.  «.  International  Aas'n, 

301,  304. 
Patnoto  «.  Sanders,  30. 
Pattenon  •.  BoikUiig  Tndes  CowmQ, 

328. 

Patterscm*.  District  CooBeB,  220, 222, 

829. 

Patterson  «.  Pittsburg  &  C.  R.  Co.,  173. 
Patterson  v.  Stote,  21. 
Patterson  «.  The  Eudora,  23. 
Patton  V.  Texas  P.  R.  Co.,  139. 
Pauley  •.  Steam  Oaufe  A  Lantern  Co., 
96. 

Pftyne  w.  WertMB  4  AtL  B.  Co.,  14,  S7, 

71,  72. 
Peabody  «.  Norfolk,  13. 
Pearson    Steamship  Co.,  180. 
Ped  SpUnt  Coal  Co.  v.  State,  66, 70. 
Pembina  Min.,  ete.,  Co.  «.  Pennajd- 

▼aniik,  87, 08. 
PenninctOB  f  •  Lumber  Co.,  47. 
Pendergaat  t.  Taaders,  64. 
Pennsylvania  Co. «.  Chapman,  147. 
Pennsylvania  Co.  t .  City  (rf  Chicago,  271. 


Penns^vania'Co. «.  Dolan,  9. 
Pennsylvania  Co. «.  Roney,  lfi2. 
Peonage  Cases,  22,  39. 
Peoide*.  Beattie,  114. 
Peojde  •.  Bellet,  79. 
People  t.  Butler  St.  Foundry  Co.,  268. 
Peojde  f .  City  of  Buffalo,  82. 
People  V.  Coler  (2  cases),  40, 119. 
People  «.  Court,  325. 
People  «.  Detroit  United  Bgr.,  307. 
People  «.  Dwyer,  325. 
People  V.  Erie  R.  Co.,  77. 
Pec^e  •.  Ewer,  101. 102. 
Pecqdev.  Fisher,  248. 
People  •.  Grout,  79. 
People  •.  Hawkins,  123. 
People  t.  Lochner,  78. 
People  «.  McFarlin,  290,  292. 
People  •.  Marcus,  284. 
People  «.  Marx.  5. 
Petqt^e  t .  Mdvin,  387. 
People  V.  Mets,  8, 60, 79. 
People  «.  Musical  M.  P.  U.,  228, 381. 
People  V.  Myers,  10. 
People  «.  Remington,  64. 
People  V.  Smith  (3  casea),  98, 318, 9U. 
Pecqples.  Walsh,  216. 
People  f .  Warden.  210. 
People  «.  Waiten,  118. 
People  •.  WiUiama,  103. 
Perkins  «.  Heert,  248. 
Perkins  •.  Pendleton,  297. 
Persons  v.  Bv    Termiaal  Co.,  9i. 
Peters  t.  George,  167. 
Petit  f .  Minneeota,  79, 80. 
Pbslan  t.  Stiles,  202. 
PhfladslpUa*.  MeUadta.  110. 
Philadelphia  4  B.  R.  Co.  Oeffagr. 
203. 

Philaddpbfe  4  B.  R.  Co.  fl.  Hu|^ 

133. 

Phoebe  v.  Jay,  31. 

Piekett  w.  Fidelity  4  Casualty  Co.,  183. 
Piekett  V.  Walsh.  314.  331,  823,  339. 

267,  261, 262,  264,  268,  276^  818. 830. 
Pierce  •.  R.  Co.,  9,  26. 


LIST  OF  CASES  CITBD 


359 


Pierce  •.  S^ablemcn'e  Union,  216,  204, 
271,  272. 278, 280, 390, 291, 807, 815. 
821. 

Pierce  «.  Van  Duaen,  140. 
FiBcrw  •.  State  Court  of  Mediation, 
886. 

Pkmeer,  The,  48. 

Pitcher  •.  New  York,  etc.,  R.  Co.,  93, 
128. 

Pittsburg,  C.  C.  4  St.  L.  R.  Co.  v. 

Chicago,  271. 
Pittaburg,  C.  C.  &  St.  L.  R.  Co.  «. 

Montfomery,  146. 
Pittaburg,  etc.,  R.  Co.  t.  SUte,  91. 
Pider*.  Nich(ri8,12. 
Plant  «.  Woods,  36,  244,  263,  887.  276, 

296,  316,  320. 
Pokanoket,  The,  11. 
PoU  !>.  Coal  Co.,  111. 
Polk  V.Daly,  24. 

Pope  Motor  Car  Co.  r.  Keegaa,  272, 

279,  313,  314,  822. 
Port  of  Mobile  «.  R.  Co.,  308. 
Potter  V.  Baltimore  &  O.  R.  Co.,  149. 
Powell «.  Sherwood,  140. 
Price  «.  People,  210. 
Purcdl «.  Southern  R.  Co.,  166. 
Purdy  t.  Rome,  etc.,  R.  Co.,  146. 
Purington  t .  Hiacheliir,  286.  287,  202, 

302,304. 

Purvis  «.  Brotherhood,  216,  223,  262, 
888, 300, 803, 804, 818, 817, 830, 821. 

Quackenbush  «.  R.  Co.,  06. 

Quinn  •.  Leathern,  274. 

Quian  ff.  New  York,  ete.,  R.  Co.,  146. 

B.  •.  Blackburn.  226. 
Railroad  Co.  «.  Stat*  Boaid  «f  Arbi- 
tration, 336. 
Railway  Co.  «.  Buck,  81. 
Railway  Co.  •.  Greenwood,  72. 
Railway  Co.  e.  Towboat  Co..  81. 
Ramaden  «.  B.  ft  A.  R.  Co..  301. 
Ramaey    People,  61. 
Baadolph  a.  Bapttr  Co.* 


Raycraft  t.  Taiatar,  361. 

Raynea  •.  Kokono  Ladder,  etc  Co., 

64. 

Read  e.  Boston  A  A.  R.  Co.,  81. 
Reed  v.  Stockmyer,  130, 166. 
Reid  Ice  Cream  Co.  v.  Stephena,  14. 
Renaud  a.  State  Board  ot  Mediation, 
836. 

Renlund  r.  Mining  Co.,  122. 

Republic  Iron  &  Steel  Co.  v.  State,  63. 

Rescue,  The,  11. 

Reynolds  v.  Black,  64. 

Reynolds  v.  Davia,  246,  361,  367,  TOi, 

274,  276,  320. 
Rejmolda  •.  Everett,  807. 
Reynolds  v.  Merehanta'  Woollen  Co., 

132. 

Rhoades  •.  Cheaapeake  ft  O.  B.  Co., 

27,  28. 

Rhode  e.  United  SUtes,  220,  226. 
Rbodea     Granby  Cotton  Milla,  294, 
296. 

Rhodes  v.  Sperry,  etc.,  Co.,  96. 
Richards,  Ex  parte,  259. 
Richardson  e.  Kaufman,  56. 
Richardson  v.  Thurber,  63. 
Richmond  t.  Judy,  220,  224. 
Richmond  ft  D.  R.  Co.  •.  Elliott,  182. 
Richmond  ft  D.  R.  Co. «.  Jonea,  144. 
Richmond  ft  D.  R.  Co.  a.  Rudd,  178. 
Ricka  V.  Yates,  12. 
Riding  «.  Smith,  42. 
Riley,  Ex  parte,  18. 
Ritchie  «.  People,  102. 
Ritchie  ft  Co. «.  Wayman,  103. 
RoberU  a.  Swift.  1. 
Robertaon  t .  Baldwin,  23, 34. 
Robinaon  v.  Cuahman,  1. 
Robinson,  Ex  parte,  323. 
Rocky  Mountain  Telephone  Co.  e. 

Montana  Fed.  of  Labor,  289. 
Roeaner  e.  Hermann,  144. 
Rogera  «.  Evarta,  276.  376,  807. 
Rogeta  V.  Smith.  42. 
BMt  •.  Kaaemriw.  361,  363. 
BoqiMBon  ft  HaU  t.  Mitebdl  Brat.,  13. 


360 


LIST  OF  CASES  CITBD 


Rom  «.  Amerfou  Emp.  LbblUty  Ini. 

Co.,  182. 
Royal «.  Gmnt,  47. 
Rubin  t.  Cohen,  47. 
Ruddy  t.  Journeymen  Flumben,  298. 
Runt  f .  Herring,  14S. 
Rum  v.  Wabuh  W.  R.  Co.,  167. 
Ryidla  t.  Mechaniee'  Bfilla,  170. 
Ryan  t .  City  of  New  YoA,  49, 78. 

Sailors'  Union  v.  HammonH  Lumber 

Co.,  323. 
St.  Louia  «.  doner,  282, 322. 
St.  Louis,  A.  ft  T.  R.  Co.  t.  Torrey,  166. 
St.  Louis,  A.  A  T.  R.  Co.  •.  Tiiplett, 

137. 

Ft.  Louis,  A.  &  T.  R.  Co.  r.  Welc^  158. 
St.  Louis  Cordage  Co.  ».  Miller,  145. 
St.  Louis  &  S.  F.  R.  Co.  v.  Delk,  130. 
St.  Louia  ConaoL  Coal  Co.  t.  lUiaois, 
90,93. 

St.  Louis  Dressed  Beef,  eto.,  Co.  v. 

Casualty  Co.,  183. 
St.  Louis,  I.  M.  A  S.  R.  Co.  v.  MoCler- 
kin,  54. 

St.  Louis,  I.  M.  ft  S.  R.  Co.  «.  Math- 
ews. 9,  29. 

St.  Louis,  I.  M.  ft  S.  R.  Co.  t.  Paul.  64, 
67. 

St.  Louis,  I.  M.  ft  S.  R.  Co.  •.  Taj^or, 

99,  128,  131. 
St.  Louis,  I.  M.  ft  S.  R.  Co. «.  White,  92. 
St.  Louis  S.  W.  R.  Co.  «.  Hizon  .36, 

294,  295. 

St.  Lotiis  S.  W.  R.  Co.  V.  Thompson, 

231,  232,  259. 
flf.  Paul  Typothets  t.  BoiAUaders' 

Union,  219,  220,  222,  224. 
Salter  r.  Howard,  38. 
San  Antonio  ft  A.  P.  R.  Co.  t.  Wilson, 

64. 

Sands  «.  Potter,  32. 
Banning  v.  Cincinnati,  69. 
Santa  Clara  Co.  t.  Soutiisfo  P.  R.  Co., 
67. 

Sarannah,  eto.,  R.  Co.  t.  WiUett,  26. 


Savings  Bank  «.  City  ot  Clay  Centre, 

312. 

Scarano  «.  Lemlein,  239. 
Schaeslein  «.  Cabaniss,  92. 
Schlang  «.   Waist   Maken,  320. 
Schmals  t.  Wooley,  248. 
SchmoU    Looht,  60. 
Schneider  •.  Local  Udon,  216, 231, 298, 
304. 

Schurr  «.  Savigny,  76. 
Scott,  In  re,  63. 

Screwmen's  Aas'n.    Benson,  219,  227, 
230. 

Seattle*.  Smyth,  79. 
Seattle  Brewing  Co.    Hansen,  300. 
Sedgwick  e.  Illinris  C.  R.  Co.,  136. 
Seeleyville  Coal  ft  M.  Co.  t.  McGloason, 
64,  60. 

Senate  BiU  No.  616,  In  re,  «86. 
Shaffer  «.  Union  Min.  Co.,  68. 
Shannon  «.  Union  R.  Co.,  82. 
Shaver  v.  Ingham,  20. 
Shaver  r.  Lumber  Co.,  97. 
Shaver  «.  Pennsylvania  Co.,  146. 
Shay  e.  American  Iron  ft  Steel  Co.,  30ft. 
Sherry  e.  Perkins,  306,  307,  321. 
Shields  «.  Yonge,  106. 
Shine  s.  Fox  Bros.  Mfg.  Co.,  288,  288, 
821,322. 

Shipwrights',  ete.,  Ass'n.  *.  MitdMD, 

219. 

Short  e.  Bullion  Beck  Min.  Co.,  46,  75. 
Shortall  v.  Bridge,  etc.,  Co.,  66,  70. 
Shuler  v.  Omaha,  etc.,  R.  Co.,  139. 
SUver  State  Coundl  t.  Rhodes,  217, 
817. 

Snverman,  In  re,  32. 
Simers  «.  Halpem,  240. 
Simon  v.  Bloomingdale,  203. 
Singer  Mfg.  Co.  v.  Fleming,  67,  60. 
Sinshdmer  v.  United  QamMBt  Waik> 

OB,  290. 
Slade  *.  Am«dd,  81. 
daughter  House  Cases,  810. 
Oomka,  In  re,  64. 
ebnaU  •.  HaauBsa,  88. 


LIST  OF  CASES  CITED 


361 


Smith  «.  AUbuna,  77, 01, 113. 

Smith  V.  Dayton  Coal  *  Iran  Co.,  111. 

Smith  .  Foran,  204. 

Smith  «.  R.  Co.,  9. 

Smith  «.  Speed,  324. 

Onith*.  Wodf,  90. 

Smith's  Adm'r.  *.  Coal  *  ban  Co.,  104. 
Smithwiek  •.  Hall  ft  U.  Co.,  ISO. 

Snow  V.  Wheeler,  226. 
Snyder  «.  Wright,  47. 
Solan  V.  Manhattan  R.  Co.,  81. 
Solomons  «.  United  States,  74. 
Bommer     Carbon  HOI  Coal  Co.,  90, 
129. 

Soufb  r.  Marshall,  223. 
Southern  Pacific  Co.,  In  re,  338. 
Southern  R.  Co.  v.  Barr,  162. 
Southern  R.  Co.  v.  Fulford,  55. 
Southern  R.  Co.  *.  Machinists'  Local 

Union,  273. 
Spencer,  Bs  pmie,  102. 
Stan    Edward  Western  Tea  &  Spice 

Co.,  131,  175. 
Stames  r.  Mauufactuiing  Co.,  102. 
State  V.  Bishop,  248,  249. 
Stete  V.  Briggs,  114. 
State  V.  Brown  k  Shaipe  Mfc.  Co.,  52, 

87. 

State  «.  Buchanan,  103, 269. 

State  V.  Cantwell,  77. 

State  t.  Chapman,  20. 

State  r.  Chicago,  etc.,  R.  Co.,  77. 

State  V.  Cleveland,  etc.,  R.  Co.,  113. 

State  «.  Dalton,  258, 250. 208,  206. 

^te«.Ddan,79. 

States.  Donaldson,  284, 274, 820. 

State  V.  Dyer,  267. 

State  V.  Easteriin,  20. 

State  r.  Fire  Creek  Coal  Co.,  70. 

State*.  Gardner,  114. 

State  «.  Glidden,  258,  289. 

State  V.  Goodnight,  308. 

States.  Goodwin,  07. 

State  s.  Granneman,  78. 

SUte  s.  Hagan,  248. 

States.  Hall,  83. 


State  V.  Haun,  68,  67. 
State  r.  Holland,  250. 
State  V.  Hurlburt,  59. 
State  V.  Hyman,  89,  93. 
State  s.  Johnston,  334. 
State  f.  Judge,  313. 
State  s.  Julow,  234. 
State  «.  Justus,  295. 
State  «.  Ercutzberg,  384. 
State  V.  Loomis,  67. 
State  t.  McGee,  300. 
Stete  V.  McMahon,  112. 
State  V.  Missouri  P.  R.  Co.,  77. 
Stete  V.  Missouri  Tie  ft  Timber  Co.,  5, 
66. 

Stete  r.  Montgomery,  248. 
Stete  V.  Muller,  103. 
State  e.  Murlin,  109, 173. 
Stete  V.  Murray,  21. 
Stete  V.  Napier,  210,  211. 
State  V.  Northern  P.  R.  Co.,  77. 
State  «.  Paint  Rock  Coal  ft  Coke  Co^ 
66. 

State  V.  Peel  Splint  Coal  Co.,  61. 

State  V.  Roberson,  211. 

Stete  «.  Ryan,  333. 

State  r.  Sharplees,  114. 

State  s.  Shepherd,  324. 

States.  Shorey,  101, 102. 

State  «.  Smith,  113,  114. 

Stete  V.  Standard  Oil  Co.,  68. 

Stete  r.  Stockford,  248.  263,  367,  374. 

300,  320. 
Stete  r.  Thompson,  77. 
Stete  V.  Toole,  241. 
States.  Vann,  18. 
State  V.  Van  Pelt,  274,  284. 
State  V.  Vickens,  89, 93. 
Stete  V.  Walker,  115. 
Stete  V.  Whiteker,  90. 
Stete  V.  Williams,  20. 
Stete  V.  <jeno,  114. 
Steamboat  Co.  *.  Brookett,  203. 
Steams  v.  Ontario  Spinning  Co.,  189. 
Steams  e.  R.  Co.,  0. 
Steen  s.  St.  Paul  ft  D.  R.  Co..  188. 


862 


LIST  OF  CA8S8  CITED 


f.  JMftr  Antoauilie  Marine 
Co.  (2  cmws),  104, 106. 100. 
Steiiiert  ft  Sons  Co.  •.  Tacisn,  270, 323. 
Bteinwt  t.  Uaftad  Biothvhood.  tU. 

228. 

Stephen!  t.  Hamftd  ABt.  J.  B.  Gb., 
163. 

BleTMHf.  B.  Co.,  IM. 
Sterenmi  •.  Newnham,  S7. 
Stewart  w.  Ferguaon,  91. 

Stewart  «.  Thayer,  81. 
Stockbridge  «.  Crocker,  3. 
Stodden  «.  Manufactu-<ng  Co.,  17S. 
Stone  «.  Bancttrft,  16, 26, 73. 
Stone  V.  Ooes,  13. 

Stone'a  Adm'r.  e.  Union  P.  R.  Co.,  144. 
Storajr  f .  Tranaportatfam  Co.,  7S. 
Stiwt  a.  Vamqr  BteeWe  Soppijr  Co., 
40. 

Stiyker,  In  re,  46. 

SturgiBB  V.  Atlantic  C.  L.  R.  Co.,  140. 

Suddath  «.  GaUaher,  64. 

Sullivan  a.  Weatem  Union  TaL  Co.,  260. 

Sutton  a.  Bakenr  Co.,  120. 

Swann  a.  Swann,  80. 

Sweeny  ».  Gulf,  etc.,  R.  Co.,  167. 

Sweeny  «.  Hunter,  57. 

Swenaon  «.  Osgood  A  Blodgett  Co.,  07. 

Tarbell  t.  Rutland  R.  Co.,  14S. 

Tkrplay  a.  State,  80, 40. 

Tatteraon  t.  Manufactuiinc  CSo.,  11. 

Taylor  v.  Blanchard,  13. 

Telq>hone  Co.  «.  Kent,  310. 

Telfer^  v.  Lambert,  81. 

Templiu  a.  State  Board,  115,  120. 

Ten-hour  law.  In  ra,  ffi ,  78. 

Tenneaaee  Cod.  etc.,  Co.  a.  Ttene,  10. 

Terre  Hai'te  &  I.  R.  Co.  a.  Bakar,  66. 

Terry,  Ex  parte,  3?3. 

Texas  P.  R.  Co.  v.  Reed,  167. 

Texas  M.  R.  Co.  t.  Morris,  9. 

Thacker  Coal  A  Coke  Co.  t.  Burke,  301. 

Thomaa  v.  Cincinnati,  etc.,  R.  Co., 

275,  285,  288.  3^  826. 
Tltoauw  a.  Walmit  Lud  Go..  Mb 


TbompMB  9.  LooomotiTa  IBnginaaw, 

228. 

Thompoon  a.  Phelan.  61. 
Thorpe  a.  White.  16. 61. 
Thum  a.  Tlocaynaki,]13, 14. 
Tichenor  a.  Bruckhrimar,  14. 
Tillar  •.  Raynolda,  203. 
Tire  RepabCo.  a.  Moa,  41. 
Toland  t.  Stevenaon.  32. 
Toledo,  etc.,  R.  Co.  a.  Long.  63. 67. 
Toledo,  etc.,  R.  Co.  a.  Pennaylvanin 
Co.,  269, 272,  280, 304. 306, 820, 821, 

sas. 

Tonagr  a.  State,  23. 
ToioMf  9,  TIm,  900. 
Townaend  a.  State,  288. 
Traction  Co.  i.  Biranan,  61. 
Tracy  «.  Banker.  248,  249. 
Tubba  a.  Cununinga  Co.,  10. 
Tucker  «.  Coal,  etc.,  Co.,  10. 
Tullia  a.  R.  Co.,  106. 
T  jttte  a.  DatNit.  eto.,  B.  Co.,  8S,  137. 
143. 

Tyler  Cotton  Pnm  Co.  a.  Chevalier,  26. 

UnderhiU  «.  Murphy,  259,  304,  325. 
Union  P.  R.  Co.  a.  Fort,  105. 106. 
Union  P.  R.  Co.  a.  Ruef,  213, 229, 245, 

253,  261,  283,  372,  378,  378.  381, 

310, 818. 316,  810,  831. 
Union  Sawmill  Co.  a.  Fdaentb  J.  66, 68. 
Union  Trust  Co.  t.  Southan  Snraiiils 

A  Lumber  Co.,  64. 
United  Garment  Workers  e.  IHivii.  340. 
United  Statea  a.  Afljer,  311. 
United  Statea  a.  Caaaidy,  268. 
United  Statea  a.  DOm,  314,  333,  SSB, 

806. 311. 814. 
United  Statea  ».  DriacoU,  191. 
United  Statea  v.  Elliott,  307. 
United  Statea  •.  Gordon,  259. 
l}nited  Statea  «.  Haggerty.  267,  276. 

321.  326. 
United  Statea  a.  Bum,  818, 836. 
United  Stataa  a.  Martin,  78. 78. 
United  StAtai  a.  BirfA.  SMb  ast. 


Lurr  OF  CA8IS  crriD 


863 


United  States  w.  Weber,  820. 

United  Stetes  •.  Worldncmen't  Anal. 
Council,  264,  307,  321. 

United  SUtea  Cement  Co.  w.  Cooper.OS. 

United  Stataa  Heater  Co.  e.  Izoa  Mold- 
en*  Union.  234. 312. 

Unnewehr  Co.  e.  Immrnea  Oo^  ISA. 

Utter  «.  Chaiwnan,  86. 

Vance  •.  SUte,  21. 

Vaniuem  •.  Boetwick,  32. 

Vecdahn  t.  Guntner.  277. 

ySUt  Mff.  Co.  ff.  Hwnphngr,  til,  SSS, 

320. 

Vnier  Mfg.  Co.  •.  Otte,  161. 

'^dicator  CodkL  Mia.  Co.  9.  lint- 
brook,  169. 

Virginia  A  N.  C.  Wheel  Co.  •.  Chalk- 
ley,  172,  173. 

YHUo  «.  Keogan,  181. 

Vocal  f .  Pekoe,  80. 

Von  Hegme  •.  TompUna,  28. 

Voaboi  t.  Lumber  Con  98. 

Wabnah  R.  Co. «.  Hannahan,  278, 276, 

276,  296,  320. 
Wabaah  R.  Co.  f.  Kdley.  61. 
Wabaah  R.  Co.  w.  McDanida,  126. 
Wabaah  R.  Co.    Young,  86,  203.  295. 
WagnCT*.  Chemical  Co.,  141. 
Waieaenko  v.  Oxford  Paper  Co..  178. 
Walker  *.  Cronin,  35,  38,  287. 
Walker  v.Gfllett,  162. 
Wallaee  «.  Floyd,  47. 
Wallaeee.  Georgia.  C.  ft  N.  R.  Co..  84. 
Wallaee  t.  John  A.  Caav  Co-  203. 
Waiah  t.  Aaa'n.  ci  Maatar  Fhtmbeta, 

282. 

Walsh  «.  New  York  A  Ky.  Co..  16, 62. 
Walton  «.  Goodwin,  27. 
Waraz  e.  CSndnnati.  ate..  R.  Co.,  202, 
204. 

Warner  v.  teith,  2,  S. 
Waahingtoa  *  O.  R.  Co.  e.  If  eDade, 
148. 

Waii  e.  Btata  BoMd.  IIA. 


Waterhouae  «.  Comer.  227, 287, 3BB. 
Waters-Pierce  OU  Co.  •.  State,  S17, 218. 
Watkins,  Ex  parte,  311. 
Watts  «.  Commonwealth,  210. 
Waugh  t.  Shunk,  8. 
Webber  f .  Baity,  274. 
Weed  f .  Burt,  26. 
Weener  t .  Brayton,  247. 
Woidman  r.  United  Cigar  Stores  Co.,  1 1. 
Weiss  «.  Musical  M.  P.  A  B.  U.,  226. 
231. 

Wenham    State.  102.  103. 
Weatem  ft  A.  R.  Co.  •.  Bishop,  145. 
Western  Furaitun  Co.  •.  Btoom,  OS,  07, 
146. 

Western   Real   E^ta   Ttnstaet  t. 

Hughea,  208. 
Western  Uaioo  Tel.  Co.  i.  MIIUoc  Co.. 

111. 

Western  Union  Tel.  Co.  «.  Myatt,  884. 

Wheatley  •.  Miscal,  10. 

Wheding,  B.  ft  T.  R.  Co.  •.  Qilmore, 

77. 

White  V.  Atkins,  16. 
White  V.  Stanley,  64. 
Whitmore  t.  Werner,  10. 
Wichita  A  W.  R.  Co.  t.  Davis,  162. 
Wiggins  Sons  Co.  •.  Cott-A-L^>p  Cc, 
13. 

Wilder  «.  Stanley,  190. 
Wilkinson  •.  Black,  26. 
Willci-t  ft  Sons  Co.  e.  BMUagm, 

214,  215,  229,  236,  320. 
Willett  V.  Jacksonville,  etc,  R.  Co., 

294. 

WOley  «.  Warden,  78. 

Wm.  Rogers  Mfg.  Co. «.  Rogen,  IS. 

Williams  t.  Eg^eston,  78. 

Williams  «.  Fears,  (2  cases),  211. 

Williams  r.  Hastings,  81. 

Williams  «.  Thacker  Coal  ft  Ctk9  Co., 

110,  134. 
WOUams,  Bx  parte,  282. 
WOlia  e.  Muaeogee  Mfg.  Co.,  33,  208, 

204. 

^raiaar  e.  BilTaniuui,  217, 204. 


8M 


LIBT  OF  OAtn  CITBD 


Wllaiagtoa  MBa.  Co.  t.  fUtoo.  89, 

109,  111,  172. 
Wilaon  t.  JoMpha,  87. 
Winkler  «.  Radne  Wsfoa  Oob,  Mb 
Winn  ff.  Southgftte,  IS. 
Winrod  «.  Walten,  64. 
Withay  •.  Btoon.  108. 
WoOmu  t.  FhMttjr  *  CMuMir  Co.. 

188. 

Woodwaid  t .  WHhbura,  43. 
Word  ».  Winder,  14. 
Worden  f.  Seub,  312, 83a 


WorUacmen'a  Aoud.  Counofl  f .  UnU«d 

SUtea,  264,  312. 
Wormell ».  Maine  C.  R.  Co.,  131. 
Wright  V.R.  Co.,  M. 
Wiicht  t.  Southam  B.  Co..  189. 
Wright  a.  Tumar,  18. 
Wright  a.  VooaUon  Organ  Co.,  74. 
Wyeman  a.  Daady,  223, 300, 303, 304. 

Yiok  Wo  a.  Hopkina,  IIP 

Zandara.Salitai^Tor       Jo.,  11. 


INDEX 


Abudonment  of  railroad  trains,  etc., 

22,  271.  272. 
Accident  insurance  (•«•  Inauranoe). 
Accidents — proviaioM  for,  87. 

reports  of,  87, 88. 
Acs  as  eonditioB  of  smptogrmsat,  110, 

117. 

Ace,  effect  of  mlaiepwaentation  of, 

106, 138. 

Ace  Umit  for  smplosnMBt  of  ehUdien, 

100. 

Age  of  employee  aa  grooad  for  dia- 

ohaige,  28,  29. 
Acemcy,  principles  of,  as  affeotiiic  labor 

organisations,  224,  238. 
Alien  contract  labor,  120. 
Alien  laborers,  taxing  employers  of, 

121. 

Aliens — discrimination  against,  116, 
118-121. 

employment  of,  on  public  works,  118, 
119. 

non-rr         i    ^daries  of  deceased, 
121  " 

Antitru  .  leral,  violations  of 

enjoin..  . 
AntitruE'  laws,  253-266.  292, 293. 
Apprentices,  23. 

Arbitration  (sm  Mediation  and  arbi- 
tration). 

Assignments  of  wages,  66-60. 

Asaodations,  eodperative,  207. 

Associations  of  workmen  (««e  Labor 
organisations). 

Assumption  of  risks  (see  Employers' 
liability). 

Attachment,  etc.,  of  wages,  66-fi7. 

AttonMya*  fees  in  suits  for  wagea,  60, 
61. 

Badges  of  labor  organisations,  260. 
Bakeries.  reguUtion  of,  74,  84.  89. 90. 
Barrooms,  wtaeat  of  wages  in,  65. 


Barbers,  examination  and  certification 

of,  108,  114,  115. 
Benefit  societies — effect  of  payments 
by,  146-149 
forced  contributions  to,  61. 
Blacklists  —  lawfulness  of,  208, 284. 

statutes  prohibiting,  295. 
Bonds  of  employees,  200,  201. 
Bonds  to  secure  payment  of  wages,  62, 
63. 

Boycotts  —  definitions  of,  282.  283. 
enjoinable  when,  318,  819. 
legality  of,  284-291. 
primary  and  secondary,  289-i  1. 
publication  of  notice  of,  284, 28o,  289. 
statutes  prohibiting,  291-293. 
Breach  of  contracts  («ee  Contracts  of 

employment,  breach  oQ. 
Bribery  of  employees,  41. 
Bribery  of  members  of  labor  otganii** 

tions,  234,  235. 
Bdildings,  protection  of  employees  in 
construction,  etc.,  of,  86,  87,  90, 
91. 

Bureaus  of  information  (see  Employ- 
ment offices). 
Bureaus  of  labor,  211,  212. 

Certified  employees,  108-116. 
liability  of  employers  for  Mta  Ot', 
109-111,  133, 134. 
Children  — age  limit  for  em^oymeat 
of,  100. 
earnings  of,  106. 

employment  of,  in  certain  occupa- 
tions prohibited,  100,  101. 

employment  of,  regulation  of,  100- 
107. 

hiring  out  to  support  parents  in  idle- 
ness, 106,  107. 

hours  of  labor  of,  101. 

rights  of  parents  for  damagse  for 
injuries  to,  105. 106. 


866 


886 


INDIZ 


CMdwa— CiiKftiMii. 
unUwful  miilnf—il  of,  u  sffaet- 
ioc  employm'  lisUUty,  104,  105. 
CWmw,  mplosnnent  of,  118, 110. 
GMI  fii^ta  td  onployeea,  43, 44. 
Omhuioc  oarda,  8S-t6. 
OoMd  abop.  240-846. 
OovanoMBt  FMntiac  OMm^  341 
(note). 

Coal  to  ba  KiiglMd  Mora  Mraeniiic.  51. 
CoUaetiTa  aeta  anjoiiiabia  whan,  SCO, 

818. 

CoOaetive  agreementa,  235-340. 
CoaifaiBationa  —  as  affecting  kvality 
of  aetioiu,  245,  254,  285. 
for  what  obtM*  lawful,  213,  214. 
of  labor  and  capital,  lUtua  of,  215- 

319,  3B0. 
reatrietiire,  250-253. 
(tM  oIm  Labor  wiuiaationa.) 
Commerea,  intaratata.  interf erenea  with 

anjoiaable,  254,  255,  321. 
rommiwioBara  of  labor,  211,  212. 
Common  law  —  code  of,  341-345. 
aUtatea  changinK,  8,  9,  89,  111,  112 
(note),  169-172. 
Company  doctors,  72. 
Company  atorea,  80, 80, 70. 
Cmnpenaation  for  injuriea  to  employeea, 
187-198. 

Competency  of  employeea,  27,  28. 
Compatition  aa  juatifying  boyaotta, 

ate.,  284. 285,  287. 
CMBplianoa  with  atatutaa,  98,  99. 129- 

181. 

Oonqjjracy  —  againat  workingmen, 
atatutea  prohibiting,  261,  299. 
eauaing  interferenca  with  an^ioy- 

ment,  298,  299. 
claaaea  of,  258,  259. 
doctrine  of,  257-261. 
Conatitutionality  of  statutes,  8,  9. 
Contempta — civil  and  criminal,  329- 
831. 

criminal  acts  as,  331. 

direct  and  constructive,  323-325. 

interference  with  receiverships  as, 

325,  326. 
labor  organisations  liable  for,  329. 
passive,  325. 

power  of  courts  to  punish,  323,  324. 
VnaUnant  for.  88»-880. 


atatutaa  regulating,  324, 835. 
what  oonatitutes,  323,  8S8^t> 
who  liable  for,  328. 
Contract — freedom  of,  4, 5. 
grounda  for  interference  with  ika»> 

dom  of,  6-0. 
limiUtiona  on  freedom  of,  6,  7. 
not  to  join  unions,  296. 
of  labor  organisations,  235-240. 
to  employ  union  labor,  240-242. 
waiving  rights,  94,  95,  144-140. 
Contract  of  employment  —  hraacih  of 

by  employees,  14-16. 
breach  of  by  employers,  24-27. 
luaach  of,  endangering  life,  22. 
change  of  dreoHlaaoaa  i 

31,  32. 
eonditiona  of,  2-5. 
deception  in,  4. 
dissolution  of,  30-33. 
effect  on,  of  ai^eement  to  give  aatia- 

faction,  28,  .'9. 
effect  on,  of  rules,  customs,  etc.,  3. 
enforcement  of,  12-15,  318,  319. 
enforcement  of,  statutory  proviaiona 

for,  16-23. 
entire,  12,  15,  16. 
forms  of,  1,  2. 

freedom  to  make,  4-7,  315,  310. 
implied,  I. 

interference  with,  35-42,  296. 
must  be  in  writing  when,  1. 
procuring  breach  of,  35-42. 
repudiation  of,  damagea  for.  34-37. 
seamen,  23,  24. 

second  during  term  of  firat,  31,  22. 

term  of,  0-12. 
termination  of,  30-33. 
with  intent  to  defraud,  17-21. 
Contractors'  bonds  aa  protaetioa  for 

wages,  62,  63. 
Convict  labor,  122,  123. 
Convict-made  goods,  sale  of,  122, 123. 
Codperative  associations,  207. 
Codperativeinsurance  of  workmen,  184, 
185. 

Corporations — as  subjects  of  special 
laws,  67,  68  (note), 
liability  of  stockholders  for  wage 
debts  of,  63. 
Course  of  employment,  175-177,  202, 
908. 


Oowtit  nistiM  ttt  to  li|fiistwwi 

.   

CMmmi  iMtni>l  of  WMrariMioB  oft  hf 
^^^^^^^MMtfoa.  SOT,  SIM. 

OwloiM  of  tndt,  oAiot  of i  ob  oob> 

^^TSoBteMtTli^SkM-J?. 
•midid  1b  iajoaetioa  Miita,  SIT. 
wooTMnbto  for  iatwfaraDM  with 
•mptoynMat,  8ft-S8, 3M,  S97, 398, 
80O-SO4. 
wbo  liablo  for.  ia  itiilM,  ote.,  SO*. 
Dojr  of  fMt,  meUy,  80. 
DMth  M  aMtefias  eootfMta  of  oa- 

pkqrBMBt,  80-83. 
DoooMod  oniployooo,  pwyiimt  of  wbjw 
due,  48. 

87-30. 

■totwpoat  of  eaow  of,  88-85. 
OiMhariad  employeoa — duty  of,  to 

Mean  other  emptoyment,  35,  36. 
payiiMBt  of  waflea  duo,  68, 64. 
DfaoovBta  and  bomma  to  aaployaea 

aiakiac  ponfaaaaa,  41. 
Donaatie  iwodueta,  pvefafaoea  of,  for 

pafaUeaaa.  118, 118. 
Dntiia  of  oBBplojm  and  waployai, 

3,8. 

(aw  aba  Emplogrm'  UabOttjr)' 

Eatiiig  in  certain  workrooma,  84. 
Emiirant  agents,  210,  311. 
■a^ployeea —  negUfoiee  of,  198-304. 
patMtona  few,  208,  207. 

to  recover  damages  for  inter- 
fennea  irith  employment,  35-39, 
381  397,298,800-304. 
■peeial  stock  for.  308. 
tana  of,  liafaOitjr  of  empkqrara  for, 
305,306. 

Iknpkigrer  and  empl<qroa— basia  of 
relation  of,  1, 2. 
inequality  of,  as  parties  to  contract, 

6,  7,  63,  72,  216,  261,  252  (note). 
Joint  liability  oi,  for  iniuriea.  204. 
atatoa  al,  how  determined,  2-4. 
Emplojrers'  advanoea,  17-21. 
Bmpkqran'  oertifieataa,  83-85. 


367 


IPiaiiilii  Mia—*    MaUltiM  tw  tiiHaa 

aomlosrasa,  184-188^ 
•Ota  of  eartiM  anplojroM,  108-111. 
■ppliaaeoa,nilaaato,  138, 137. 
■awriatton  thaoty  of.  188, 188. 
assnmprtnn  of  tUu.  88-88, 140-144. 
aMonuMo  of  safety,  174, 178. 
care,  ndaaa  to,  134-138. 
aar^ataadaid  of.  And  by  atatnta. 

OOBBBBOO  omploynMBt,  157.  158. 
ooBBporatiTO  negHgwiea,  153,  158. 
eompUaaea  with  atatatoa  aa  afsei- 

lag,  88-07. 129. 
eoDtsBBplated  liska.  158, 158. 
eontiaetins  oan  144-149. 
oontnwla  with  labor  orfaaiaatioM^ 

179, 18a 
ooatiibutory  niJiganoe,  140-163. 
eatoBsaiy  method  or  nae,  dapartora 

from,  hy  anpbqrea,  131. 
danteroaa  ooeapatioBa  aa  affanting 

d^pea  of  can,  136, 136. 
dafenaea  of  emplojrers.  189-189. 
dopartmental  doetiiaa,  160. 100. 
detailaofwork,178,179. 
direct  orders  of  empiojm,  178, 174. 
duties  of  employers,  134-188. 
f ellow-aenranta,  du^  in  Uring,  185, 
188. 

fellow  aai»ie<%  defeaaa  of,  153-173. 
fattow-oarrioa  nda,  reaaona  fbr,  155, 
158. 

fsOow-asnrfoe,  tbeoika  of,  158-167. 
iaqMction,  duty  of  emirioyor  aa  to, 
131-186. 

iaqMctiraa,  govemmeat,  sffeet  of, 
138, 134. 

instructiona  and  warnings  to  «nploy- 

ees,  137, 138. 
instnmientalitiea,  aomily  of,  136. 
insurance.  180-184. 
labor  organisations,  coatiaeta  with, 

179. 180. 
law  determining,  134. 
maintenance  and  repair.  180. 181. 
ne^igenee,  139. 

Bon-delegable(fatiea(rfemidoyer,  138. 
ownership  of  aivlianoes.  diect  of, 
134,  136. 

place  and  inatnuMntalttisa,  138, 13T. 
repairs.  130, 181. 


868 


INDIZ 


Empioyen'  liabiUtjr  — Conf^tM^ 
npian,  effMt  of  pnaiw  to  mke, 

172,  173. 
nilea,  duty  to  malH^  IM,  lt7. 
rulM  ihi/Ung  limbOity.  144. 
safe  place,  126.  127. 
■tetutM  modifying.  100-172. 
Sunday  labor  to  Tiolatioa  of  •tatalo. 
80,  81. 

Tariatlon  of  eooiM  of  MiplagnMat, 

17&-178. 
vice-principals,  100,  163-107. 
violation  of  atetutea,  93-08, 127-139. 
"  volenti  non  fit  injuria,"  140. 
volunteers,  1,  177,  178. 
working  force,  130,  130. 
Empioyen'  liability  to  third  ponona 

for  aogUgMMo  of  aBplogrooo,  SOl- 

204. 

Bmployers,  right  of.  to  neover  damages 
for  interference  with  employees, 
37-40,  301,  302,  317. 

Employment,  discrimination  in,  pro- 
hibited, 5. 

Employment,  foremen,  etc.,  accepting 
fees  for  fumiahing,  211. 

Emptojrment,  new,  duty  of  employee 
to  seek,  after  discharge,  25,  20. 

Employment,  offer  of  different,  by 
MBptoytr  aftar  btoMk  of  oootnwt, 
90. 

Bnployment  offioes,  208-211. 
Enforcement  of  labor  contract,  12-10. 

statutes  providing  for,  16-23. 
Engineers,  examination  and  licensing 

of,  100,  112,  116. 
Enticing  employees,  35-40. 
Equity  control  of  labor  «»gft»<Mititmg. 

226,  306-317. 
Erdman  Act,  mediation  and  arfaitn- 

tion  under,  337-340. 
Examination  and  liconifaig  of  workmn. 

108-116. 
grounds  for,  112-110. 
Exemption  of  wages  from  gamiahment. 

ete..8»-«7. 

Factory  regulations,  83, 84,  80,  00. 
Fees  for  employment,  foremen,  etc., 

receiving,  211. 
Fellow-service   (sm  Empioyen'  li»> 

faeitar). 


FInM  by  labor  orgaaiaationa,  214,  315, 

22»-33a  »io,m,m,m,  aoi. 

327. 

Flnaa  for  imparfeot  work,  60, 61. 
Fines  on  non-memben  by  labor  orgaiii- 
sations,  266.  286,  SOI. 
recovery  of,  301. 
Fire  escapes  on  factories,  etc..  83. 
Food  not  to  be  eaten  in  certain  work- 
rooms, 84. 
Foremen,  etc..  receiving  fees  for  em- 
ployment. 211. 
Fnedom  of  contract.  4-0,  316,  310. 

■tatutes  affecting,  6-0. 
n«edom  of  employer  to  fix  physical 
oonditioiM.  as,  »-9»,  IIS,  110. 
127. 

Freedom  of  speech.  284. 188. 280. 80fr- 

310,  327,  328. 
Freedom  to  trade,  70-72. 
Full  crew  on  railroad  traioa.  lawa  t*- 
«aMnc,85.01. 

Garnishment  of  wages,  66-67. 
Guards  for  dangeioua  maehbiay,  83. 
8180.99. 

Hiring  by  day,  week,  month,  or  ywv, 

effect  of.  0-11. 
Horseshoers,  ezaminatioii  and  lieanH 

ingof.  100.  114. 
Hospital  fees,  withholding,  61. 
Houn  of  labor— in  bakeries,  74,  78. 
in  mines,  etc.,  74.  77. 
of  women  and  children.  101-103. 
on  public  works,  74,  75,  78. 79. 
on  railroads.  74.  70-78. 
ngubtioii  of,  78-79. 

Illiterate  MighioaH,  ate.,  on  nilfoada. 

no. 

Implied  contracts,  1. 
Implied  term  of  contracts  of  employ- 
ment, 9-11. 
Incompetence  —  as    affecting  wiga 
rates,  47.  48. 
as  ground  for  diacharge,  27. 28. 
Injunctions — aatttmrt  aet  enforeeafalo 
by,  321. 
appeals  from,  .112,  313. 
award  of  damagea.  317. 
hindiaciilMD.  810-818. 


INDIX 


869 


Injunetiona  —  CofUin%itd. 

"blanket  injuneUont,"  31S,  tl4. 
bonds  in  cum  of.  310,  311. 
boycott*  subject  to  when,  tM,  tl9. 
cUmm  of,  306,  300. 
eriminal  arts,      maA,  aot  whiMt 

to,  307,  308. 
discloauro  of  trade  secrets,  13,  14. 
effect  of  statutes  legal'sing  labor 

organisations  on,  314,  31S. 
effect  on  persons  not  parties,  oi3. 
employment  in  violation  prior 

contract  subject  to,  13,  14. 
granted  when,  306-308. 
incitement  to  strikes,  319-321. 
interference  with  contracts,  206,  297. 
interstate    commerce,  interference 

with.  308. 
irregularity  in,  eflaot  of,  311. 
issued  at  wI<om  iatUaee.  S06,  S10. 

317. 

Jurisdiction  of  aUto  and  federal 

courts,  310. 
labor  organisations  as  pttfaa,  217, 

221,  222,  313,  314. 
libel,  as  such,  not  subject  to,  308-310. 
mails,  hindering,  2fi5,  308,  821. 
mandatory,  306. 
modem  use  of,  305. 
nature  of,  306,  306. 
obedit'iice  required  when,  311,  312. 
perscus  bound  by,  313,  314,  328. 
persuasion  subject  to,  319,  o20. 
picketing,  321-323. 
preliminary  or  interlocutory,  300. 
prevention  of  tBupUoa  of  vaioiM, 

217,  317. 

"probable  expaetandM"  ptotaotad 

by,  316. 

protection  of  intangible  rights  by, 

315,  316. 
state  may  procure,  308. 
strikes  subject  to,  when,  320,  321. 
validity  of,  how  dotstminad.  811. 

312. 

Injuries  to  employees— tqr  third  per- 
sons. 42,  43. 
compensation  for,  187-198. 
employers'  liability  for,  124-186. 
Insolvency  of  employer,  effect  of,  32. 
InqMotion  —  employers'  duty  as  to, 
1S1-13S. 


of  factories,  etc..  laws  relating  to,  88, 

84,  8»-03,  133. 
Inspectors'  certificates,  98,  99. 
Inspectors,  factory,  92,  93. 
Insurance  —  accident,  freedom  of  aai> 
ployees  in  procuring,  72. 
employers'  liability,  180-184. 
mutual,  of  employers,  184. 
workmen's,  184-186. 
Interference  with  ontraets  of  tUfliOf' 
roent,  35-42,  296. 
civil  and  criminal  liability  for,  104. 
damages  for,  297-304. 
motive,  30-39.  297,  298. 
remedies  for,  300-323. 
statutes  prohibiting,  39-41,  299,  800. 
Interstate  commerce,  interference  with, 

256,  266,  308. 
Intimidation  of  employers  and  em* 
ployees,  41,  42,  286-289, 297-300. 
by  labor  organisations,  298-300. 
statutes  prohilnting,  299.  300. 
Intoxication  of  employees,  201. 

procuring,  42,  43. 
Inventions  of  employees,  73,  74. 

Justification  for  interferanoe  with  tia- 
pkqroMBt,  274, 27S. 

Labor  agents,  210,  211. 
Labor  as  capita',  6,  253,  310. 
Labor  bureaus,  211,  212. 

(«ee  aUo  Employment  oflloes). 
Labor  organisations — scUoos  b;,  ojd 
against,  217-224. 

antitrust  laws  as  affev^^ting.  253-260. 

applicat''">9  for  mem^  n>hip,  238. 

as  affect  r  'bird  partii  s.  214. 

badges  of, 

bribery  of  officers  of,  234,  235. 
by-laws,  rules,  etc.,  of,  220-230. 
closed  shop  agreooMnts  of,  240-846, 

302,  303. 

coercion  by,  229,  236,  240,  243,  240, 

273,  274,  286.  287.  326. 
collective  agreements,  235-240,  24S. 
contracts  by.  224,  235-240. 
contracts  of.  effect  oa  individual 

contracts,  237-239. 
contracto  of.  validity  of,  235-237, 239. 
contracts  to  employ  only  members  of, 

340-242. 


2b 


370 


INDEX 


Labor  orgsoiistioiw  —  Continvai. 
eontnets  with,  aa  affeotiac  emidoy- 

en'  liability.  179,  180. 
corporate  character  of,  219-226. 
damagca  for  acts  of ,  231, 232, 239, 242. 
discharge  of  workmen  on  account  of 

membership  in,  233,  234. 
diaaolution  of,  227,  232,  2S1. 
•mbeulement  of  funds  of,  226,  226. 
enforcement  of  rules,  etc.,  of,  226- 

229. 

eajoinaUe,  217,  221, 222. 

equity  courts  baat  auttad  to  deal 

with,  225. 

exemptions  affecting,  218,  253,  260. 

expulsion  as  interference  with  em- 
ployment, 297. 

expulsion  of  members,  225,  230-232, 
239,  207,  298. 

fines  against,  222. 

fines  by,  214,  215,  226-230,  340,  266, 

267,  286,  301,  327. 
incorporated,  status  of,  217,  218. 
interference,    statutes  prohibiting, 

299,  300. 

interference  with  employment  by, 

295-300. 
labels  or  trade-marks  of,  246-250. 
law  governing,  217-226. 
legaUty  of.  213,  214. 
liability  of,  for  damagaai  222,  223, 

297-299,  301-304. 
liability  of,  in  eontmpi  proceedings. 

313,  327-329. 
liability  of  members,  222,  223,  304. 
mandamus  to  restore  membership  in, 

231.  232,  304. 
membership  in,  230-234. 
nature  of,  213-217. 
numbers,  coercive  effect  of,  in,  245, 

254,  262,  274,  277. 
olBcials  of,  may  advise  members, 

275,  276,  296. 

OTganisers  of,  may  not  incite  strikes, 

276,  320,  321. 

partnership  character  of,  219-221. 
payment  of  strike  benefits  by,  276. 
principals  and  acaota  in,  224,  238. 
^HTotection  of  employM  as  aMmbers, 
233,  234. 

representativ*  emiMitjr  of  oAeeis, 
280. 


restoratioa  to  aMBliHih^  2tl,  SIS; 

304. 

rival   unioBa,  200-988,  SOS,  S17, 

327. 

rules,  by-laws,  etc.,  of,  226-230. 
kules  of,  as  affecting  freedom  ot  con> 

traut,  6,  213.  226. 
rules  of,  as  defense  in  suits  for  dam- 
ages, 214-216,  229. 2S0. 
status  of,  217-226. 
suits  by  and  against,  217-224. 
unincorporated,  status  of,  218-220. 
V(dunUuy  chuaetar  of,  218,  214, 
218,  219. 
Legislatures,  authority  of,  7-9. 
Letters  of  recommendation,  33-35. 
Liability  for  damages  for  interference 
with  emidoyment,  35-39,  294,  297, 
298,  300-304. 
Liability  of  employees  for  ne^igent 

acts,  199-201,  204. 
Liability  of  employers — for  injuries  by 
strikers,  269,  270. 
for  injuries  to  employees  (aes  Em- 
ployers' liability), 
for  taxes  of  employees,  205,  206. 
to  third  persons  for  nsfKiBDoe  ol 
employees,  201-204. 
Libel,  restraint  ot,  hf  iniunetioB,  808- 
310. 

Licensing  of  workmen,  108-110. 

Liens  for  wages,  61,  62. 

Life-Mving  service,  injured  employees 

in,  192. 

Limitations  oo  f^oadom  of  eontnwt, 

6-9. 

Liquor  —  sale  of,  near  labor  camps,  88. 
aale  of,  to  employees,  42, 43,  09. 
taking,  into  mines,  mills,  ate.,  88. 
use  of,  on  trains,  99. 

Mails,  interference  with,  enjcinabtob 

265,  300,  821. 
Married  women,  earnings  of,  106. 
Mechanics',  etc.,  liens,  61,  62. 
Mediation  and  arbitration  —  boards  of, 
how  chosen,  332. 
construction  of  statutes  relatinc  to, 

334-340. 
definitions,  332. 

enforcement  of  awards,  333,  334. 
•tatatofy  ptoviaioM  for,  881-488. 


INDEX 


371 


IfiM  employee,  wrmminmtton  and 
Mftiieatkm  oT,  108, 109, 113. 

IiiBsfonB«i,««tifi«d,atetatof,  109- 
111. 

MiiMncala«ioui,86,00. 
Ifiaon,  aandnga  of,  100. 
Ifotivo  aa  aUoMot  in  iatarfannoa  with 

MBpkvmMit,  88, 87. 243, 245. 297. 

388,808.804. 
llotiva  of  a«ta  aa  affaeting  kgality, 

374.378. 

NatioBal  Qnard,  ptotectfoa  of  work- 

ONo  aa  membna  of ,  44. 
Na^igntoe  <a  empiogroca,  198-304. 
Joint  UaUlitjr  for,  304. 
IfatbOity  of  anployae  for,  199-301. 
Ualiflitjr  of  empioyor  to  thixd  persons 
for,  201-204. 
Kagiieenee  of  empltqren,  UaUUty  to 
employeea  for   (•••  Sknployers' 
liabiUty). 

Negligenoe  of  operatora  of  atoam  boil- 
era,  etc.,  200. 

Netfigenoe.  vidation  of  aafaty  lawa  as, 
98-97, 127-129. 

m^t  woric  by  wnaan  and  ebfldren, 
101, 108. 

Notieo  of  temrination  of  eontraot, 
82, 88. 

Onlan— diaobadiaaoa  of,  m  voonds 
for  diieharge,  29. 
negUgent.  by  employer,  ITS,  174. 
Omtime  pay,  73, 75, 76. 

Payee  of  wagea,  who  ia,  46, 106. 
FtQrment  of  wagea— due  deBaaaafl  em- 
ployeea, 46. 
inaei^,  64-60. 

in  vioiatioa  of  aUtute,  46, 47, 66. 
plaeeof,  88. 

time  of,  aa  indieating  term  of  oon- 
traet,»-ll. 

time  of,  atatatea  regolating,  61-85. 

to  diaoharged  employees,  53, 54. 
PaarionB  for  employees,  206,  207. 
Peonage,  18-21. 

Permanent  employment,  eontraets  for, 
0. 

Psnuasion — enjoinable  whan,  819, 820. 
toalifln,  li^of.  272-376. 


Physicians,  freedom  in  sdeetion  of,  72. 
Picketing — enjoinable  when,  321-838. 

Uwfidneaa  of.  276-281. 

statutes  prohibiting,  281,  282. 
Plumbers,    examination   and  fsgi^ 

tration  of,  109,  113,  114. 
Police  power,  7-9. 

Preference  of  wage  claims  over  oth« 

debts,  63,  64. 
Prison  labor  (••«  Ckmvict  labor). 
"Probafala  ezpaotaneiea,"  doetrine  of. 

316. 

Profit-aharing  by  emjtloyeea,  208. 
Property,  right  to  empbqrmsat  aab 

5,  6,  315,  316. 
Proteotioo  ot  employees — aa  memben 
<a  labor  orvmiaations,  233,  234. 
as  memben  ^  National  Quaid,  44. 
as  traders,  70-72. 
as  voters,  48, 44. 
Public  printing,  union  label  on,  349, 
250. 

Putdic  work,  doaad  diop  agraementa 

in,  240,  241. 
Public  works — employment  of  rseidsBt 
Uborenon,  118, 119. 
honn  at  labor  on,  74, 75, 78, 79. 
pref emiea  of  dwneatic  produeta  lav, 

118, 119. 
ratsa  of  wagea  on,  48-50. 

Quantum  manilt,  when  aetioo  may  ba 

faronght,  8. 47. 

Railroad  emidoyeea.  eramination  and 
oartifieatioD  of.  108,  112.  118, 
118. 

BaSvoad  niiair  diopa  to  ba  maiatainad 

witUa  tha  atirta,  120. 121. 
Railroad  traina— abandouaaat  of,  23, 

271.272. 

qMoial,  tot  wo^ngmen,  207. 

auSoient  crews  for,  86, 91. 
Raiboada — employment  of  iDitanto 
engineers,  etc.,  on,  116. 

houra  of  labor  on,  74,  76-78. 

liability  laws  affecting,  171,  172. 

safety  appliances  on,  85,  89-92. 
Railway  mail  derks,  injured,  192, 198. 
Rate  of  wages,  3,  47-50. 

changing,  47.  48. 

nculation  by  atatitia,  48-50. 


372 


INDEX 


Ratification  by  employer  of  negUgent 
acta  «.f  employee,  203,  204. 

Refusal  to  deal,  2M.  283-285. 

Regiatration  of  workmen,  lOft-118. 

ReUef  benefits,  146-140. 

Rondent  laborers,  preferaoea,  ia  «ni- 
ployment,  117-121. 

RespondM*  ■oparior,  doeMna  of,  301, 
202. 

RMtraining  orders  (t««  Injunctions). 
Right  to  contract,  4,  S,  316, 316. 
Rights  of  employees—aatiadank  7l>-72. 

as  voters,  43, 44. 
Rules  of  emidoyw  u  allMtiag  eon- 
tracts,  3. 

Safe  place,  common  law  aa  to,  126, 127. 
Safe  place  and  appliaaoaa,  atstutea 

requiring,  83-99. 
Safety  applianoea— in  faetotieo,  8S.  84, 

89,  90. 
on  railroads,  85,  89-92. 
Safety  laws — constitutionality  of,  88- 
92. 

disobedience  of,  as  affecting  em- 
ployers' liability,  93-08. 127-129. 
enforcement  of,  92,  93. 
Salary  and  wages,  45,  46. 
Satisfactory  services,  test  of,  28, 20. 
Scrip,  tokens,  ete.,  poymeat  of  wacea 

in,  64-69. 
Seamen,  contraeta  of  anpkqpiiMBt  of, 
23,  24. 

Seats  for  female  emplosreea,  103, 104. 

Service,  variation  of,  29,  30. 

Sickness,  effect  of,  on  contiaet  of 

employment,  16,  31,  32. 
Special  legialation,  171,  172. 
Specific  performance  of  contracts  of 

employment,  12-15. 
Statutes  modifying  common  law,  8,  9, 

89,  111,  112  (note),  169-172. 
Steam  boilers,  inspection  of,  84. 
Stevedores'  bonds  for  wages,  62. 
Stock,  special,  for  employees,  206. 
Stockholders  of  corporations,  liability 

of,  for  wage  debts,  63. 
Store  orders  aa  payment  for  wtfea, 

66-70. 

Btnet  railways,  aafety  a  ^pHanoaa,  ato., 

on.  86. 
Sttika  benaAta.  378. 


Strike  insurance,  272. 
Strike  notices.  266. 
Strikers  ad  trespassers,  273,  274. 
Strikes — definition  of,  261,  262. 
effect  of,  on  duty  of  employers,  260, 
270. 

effect  of,  on  rdation  of  employer 
and  employee,  263,  264,  272,  273. 

failure  to  render  service  because  of, 
269. 

fear  of  injury  during,  aa  ezouae  for 

violation  of  contract.  200,  370. 
incitement  of,  271-276. 
indtemoBt  of,  enjoinablo  irben,  820, 

321. 

injuries    to    employeea  MM0|>ting 

service  during,  270. 
injuries  to  third  persons  during,  269. 
legality  of,  how  determined,  262- 

266,  271. 

liability  of  municipalities  for  dam- 
ages caused  by,  271. 
notice  of,   in  advertisements  for 

laborers,  4,  270. 
of  railroad  employees,  22,  271,  272. 
participation  in,  notice  of,  not  to  be 

required,  270,  271. 
statutes  authorising,  271. 
sympathetic,  268. 
unlawful  when,  266-268. 
Striking  employees,  status  of.  263, 

?64,  272.  273. 
Sufficient  compliance  with  safety  laws, 

98,  99,  135. 
Suite  at  law  as  remedies  for  interfw- 

«ioe  with  employment,  800^304. 
Suits  for  wages,  60,  61.  107. 
Sunday  labor,  79-82. 

as  affecting  employeia'  liability,  80,81. 
as  affecting  recovery  of  wagea,  etc., 
81,  82. 

Taxes  of  emtdo^ees,  liability  of  em- 

ploym  for,  205,  206. 
Term  of  contract  at  anployntent,  0-12. 
Tips  to  waiters.  41. 
Ton  as  bans  for  wage  payments,  78. 
Trade  agreementa,  236-240. 
Trade-marka    of    tnde-uniona  (••• 

Union  labda) . 
Trade  aaereta,  diadoaura  «l,  13, 14. 
Thuto-nniona  (•••  Labor  oiianiaationa). 


INDEX 


373 


Traina,  apecial,  for  worUngiiua,  907. 
■uffldent  crewa  for,  85,  91. 

Unfair  liata,  publication  of,  enjoinable 

when,  309,  310. 
Union  labela — aa  trade-marka,  240-248. 
forgery,  etc.,  of,  249. 
atatutes  protecting,  247-249. 
Uaion  labor,  contracta  for  ezduaive 
employment  of,  240-246. 

Violation  of  law  by  employee,  effect 
of,  on  recovery  of  wages,  46,  81, 82. 

Violation  of  safety  lawa  aa  negligence, 
93-98,  127-129. 

"  Volen'j  non  fit  injuria,"  doctrine  of, 
140. 

Volunteera,  1,  177, 178. 
Voters,  protection  of  waptoycM  m,  43, 
44. 

Wage  brokers,  67-60. 
Wage  claims —  preference  of,  63,  64. 
sendi^^  outsi  o  state  for  collection, 
M,  67. 

Wages — assignments  of,  66-60. 
contractors'  bonda  far  aeeurity  of, 

62,  63. 

deductions  from,  for  benefit  eodetiee, 

etc.,  61. 

deductions  from,  for  imperfect  iroik, 

50,  51. 
definition  of,  45,  46. 
due  deceased  employees,  46. 
due  discharged  employees,  53,  64. 
for  work  done  in  violation  of  law, 

46,  81,  82. 
gamiahment  of,  fi5-£7. 


improper  pajnneait  of,  46b  47, 

6;. 

judgments  for,  60. 

liability  of  atocklwlden  of  ooipo- 

rations  for,  63. 
liens  for,  61,  62. 
of  married  women,  109. 
of  minors,  106. 
of  women,  suits  for,  106,  107. 
paid  before  breach  of  contract,  16. 
payment  of,  in  scrip,  64-69. 
payable  to  whom,  46,  106. 
place  of  payment  of,  66. 
prior  payment  of,  in  settlement  of 

estates,  etc.,  63,  64. 
rate  of,  47-60. 

recovery  of,  after  breech  of  coatrMt, 

15,  16. 
refusal  to  pay,  54,  65. 
retention  of,  as  pledge,  66. 
suits  for,  60,  61, 107. 
time  of  payment  of,  61-54. 
withholding  for  ben^  fundi,  hoe* 
pitals,  etc.,  61. 
Waiver  of  provisions  of  aafaty  Iswe, 

94,  95,  144-149. 
Weekly  day  of  rest,  80. 
Weighing  coal  before  acreening.  61. 
Women  and  children,  emidoyment  <rf, 
100-107. 

Women  —  hiring  out,  to  support  hus- 
bands in  idleness,  107. 
hours  of  labor  of,  101-103. 
wages  of,  48,  106,  107. 
Workmen's  compenaation  for  injuiiee, 

187-198. 
Workmen's  insurance,  184-18S. 
Workmen's  trains,  207. 


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